Armstrong v Powell
[2024] NZHC 2820
•2 October 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-3115
[2024] NZHC 2820
IN THE MATTER of an appeal by way of case stated from the Family Court at Waitakere BETWEEN
KATRINA ARMSTRONG
Applicant
AND
MICHAEL POWELL
Respondent
CIV-2024-404-439 IN THE MATTER
of Oranga Tamariki Act 1989
BETWEEN
CHIEF EXECUTIVE OF ORANGA TAMARIKI, MINISTRY FOR CHILDREN
Applicant
AND
SARAH GARDINER
First Respondent
JOHN WRIGHT
Second Respondent
Hearing: 18 July 2024 Appearances:
CIV-2023-404-3115
JM Gandy and CD Braybrook for the Applicant No appearance for the Respondent
JA Sutton, lawyer for the Child
CIV-2024-404-439
K Eckersley for the ApplicantNo appearance for the Respondents RB Gubb, lawyer for the Child
VA Crawshaw KC and SM Wilson for the NZ Law Society, NZ Bar Association and the Law Association (granted leave to intervene in both proceedings)
AS Ross KC, counsel assisting the Court in both proceedings
Judgment:
2 October 2024
ARMSTRONG v POWELL [2024] NZHC 2820 [2 October 2024]
JUDGMENT OF FITZGERALD J
Introduction
[1] Some litigants in the Family Court are self-represented — either by choice or because they are unable to access legal representation. In some cases where one or more of the parties are self-represented, Family Court Judges will appoint a lawyer to carry out identified tasks in the proceeding, often to assist the Court itself, but sometimes extending to assisting the self-represented party.
[2] There are disparate views held in the Family Court about the Court’s power to make such appointments and, in particular, whether the Court has the inherent power to do so. Judge E B Parsons in the Family Court at Waitakere has therefore, on her own motion, stated a case in both of the underlying proceedings for the opinion of this Court, pursuant to s 13 of the Family Court Act 1980 (FCA).1 Section 13 provides that the Family Court may, on application or on its own initiative, state a case for the opinion of the High Court “on any question of law arising in any matter before the court.”
[3] The cases stated primarily concern two questions of law, framed by Judge Parsons as follows:
(a)First, does the Family Court possess inherent powers to appoint standby counsel (as an appointment distinct from specific statutory provisions permitting the appointment of Lawyer to Assist)?
(b)Second, does the Family Court possess inherent powers to appoint Lawyer to Assist where there is otherwise no statutory basis for that appointment?
1 Armstrong v Powell [2023] NZFC 12266; and Chief Executive of Oranga Tamariki — Ministry for Children v Gardiner [2023] NZFC 12271; together [cases stated]. Pseudonyms have been used to protect the identity of the parties.
[4] The issues underlying the cases stated commonly (though not exclusively) arise when proceedings in the Family Court trigger s 95(1) of the Evidence Act 2006, which prohibits a party to a civil proceeding “concerning family violence” from personally cross-examining certain witnesses. When that prohibition applies, s 95(5) states that the “party’s questions” may be put to the witness by the party’s lawyer or, if unrepresented, by “a person appointed by the Judge for the purpose”. On the plain wording of s 95(5), the person appointed need not be a lawyer, but I was told that Family Court Judges will usually appoint counsel or lawyer assisting the court (the more modern terms for amicus curiae), who is then directed to carry out the s 95(5) role.
[5] In Irving v Irving (also a case stated to this Court by the Family Court), Katz J considered the scope of the role to be carried out pursuant to s 95(5). As she explained, a practice had developed in the Family Court whereby lawyers appointed for that purpose were being asked by some Family Court Judges to conduct a full cross-examination of the witness(es) concerned.2 After considering the competing approaches to the scope of the s 95(5) role, Katz J confirmed that a lawyer or other person appointed to carry out the role is limited to acting as the “mouthpiece” of the unrepresented party, in terms of only putting that party’s questions to the witness, rather than also going on to conduct a full cross-examination.3
[6] A similar approach to s 95(5) was adopted by Wylie J in Ross v Family Court at Auckland.4 Wylie J held that the Family Court Judge in that case had erred in law when appointing lawyer assisting the court for the purposes of s 95(5) to “ensure that the case was well put while avoiding interpersonal awkwardness”.5 Wylie J said that the Judge had misunderstood the role to be undertaken pursuant to s 95(5), which is limited to putting to the witness the questions a party precluded from personal cross-examination wishes to have asked.6
2 Irving v Irving [2021] NZHC 2269 at [9]–[11].
3 At [54]. Katz J confirmed that there is nothing in s 95(5) to preclude the unrepresented party and the person appointed to the s 95(5) role from conferring during the cross-examination, nor from modifying/updating the questions as the cross-examination continues.
4 Ross v Family Court at Auckland [2021] NZHC 3204.
5 At [84].
6 At [84]–[85].
[7] The implications of Irving (though not Ross) were discussed by Judge S J Coyle in Croy v Stafford; a decision of some importance to the cases stated.7 The Judge said:
[9] If the focus is on justice and fair process, if one adopts the Irving v Irving approach then a self-represented litigant is at a distinct disadvantage because counsel to assist appointed under s 9C can only put the questions given by a self-represented litigant. He or she is not experienced and often does not know what questions need to be put in order to properly advance their case. The consequent result is a lesser standard of advocacy and from a Family Court Judge’s perspective that often means the evidence is not properly tested. These issues were squarely addressed by the High Court in the Irving v Irving decision.
[8] I pause to interpolate that the Judge’s reference to “s 9C” is a reference to s 9C of the FCA which provides:
9C Role of lawyer appointed to assist court
(1)The role of a lawyer who is appointed to assist the court in proceedings is to—
(a) provide independent legal advice to the court on any complex factual or legal issue requested by the court:
(b) offer an impartial perspective in relation to any issue arising in the proceedings:
(c) undertake any other task required by or under any other Act.
(2)A lawyer appointed to assist the court in proceedings may—
(a) call any person as a witness in the proceedings:
(b) cross-examine witnesses called by any party to the proceedings or by the court.
[9] Judge Coyle went on to refer to the Court of Appeal’s decision in Fahey v R, in which the Court confirmed that trial courts have an inherent power to appoint “standby counsel” to assist an unrepresented defendant in a criminal proceeding, to the extent the unrepresented defendant wants to take up standby counsel’s assistance.8 Judge Coyle then stated:
[10] As I have set out above, the result in the Irving v Irving decision was arrived at because of the particular wording of s 9C. While Fahey v R was
7 Croy v Stafford [2023] NZFC 6884.
8 At [8], citing Fahey v R [2017] NZCA 596.
referred to by the learned High Court Judge, nowhere in Irving v Irving does it say to hold [sic] that the Family Court cannot appoint standby counsel and indeed the Court of Appeal decision, which in terms of stare decisis holds more weight and is binding on the District Court, appears to hold specifically that standby counsel can be appointed through the [Court’s] inherent powers to regulate its own processes. Thus, I choose to [exercise this Court’s] inherent powers to regulate its process so as to ensure that justice is done and seen to be done between the parties by appointing standby counsel and not counsel to assist.
[10]The Judge described standby counsel’s role as follows:9
[T]o cross-examine (in recognition of s 95(1) of the Evidence Act) Ms [Croy] on behalf of Mr [Stafford] for the reasons set out above. The restrictions in Irving v Irving as to what questions can be put do not apply to standby counsel.
[11] As can be seen, the appointment of standby counsel circumvented the limited role of a lawyer or other person appointed for the purpose of s 95(5).
[12] In the cases stated to this Court, Judge Parsons says that the decision in Croy, and the concept of appointing standby counsel, has been commended to the Family Court bench.10 Judge Parsons also says that an increasing number of appointments of standby counsel and/or lawyer assisting the court are being made, relying on the Family Court’s inherent powers, and that the distinction between the two roles is often blurred.11 The Judge states that “the extent of the Family Court’s inherent powers is now being debated and is unclear.”12 This gives rise to the first question, set out at [3] above.
[13] The second question arises from the fact that, across the suite of statutes which confer on the Family Court its substantive jurisdiction, some — but not all — contain an express power pursuant to which the Court may appoint lawyer assisting the court.13 Judge Parsons advises that in proceedings conducted under statutory regimes which do not contain an express power, such appointments are nevertheless routinely made. In the cases stated, Judge Parsons queries whether the enactment of an express
9 Croy v Stafford, above n 7, at [11(b)].
10 Cases stated at [29].
11 At fn 36 and 38.
12 At [30].
13 I will refer to the role as “lawyer assisting the court”, rather than “counsel assisting the court” (the more usual terminology used in the High Court), given this is consistent with the language used in s 9C of the Family Court Act 1980 (FCA).
statutory power to appoint lawyer assisting the court in some, but not all, statutes governing Family Court proceedings suggests Parliament intended to oust any inherent power of appointment.14
[14] Finally by way of introduction, the cases stated also include a third question, namely:
(c)Is funding available for any role appointed reliant upon inherent powers by way of appropriated funds/Public Finance Act 1989?
[15] While some of the parties making submissions on the cases stated addressed this question, I raised whether it was properly before this Court. In raising this issue, I acknowledge that the particular question of law referred to the Court by way of a case stated is ultimately to be determined by the court or tribunal stating the case to the High Court.15 What constitutes a question of law is also to be broadly construed.16 Nevertheless, in Contributory Mortgage Investments, a case concerning the case stated provisions of the Securities Act 1978 (which provide that the Court must hear and determine questions of law stated to it), the Court observed that:17
… the Court is not required to determine questions of fact wrongly characterised as a question of law. The Court must always remain in control of its own processes, and a contention on behalf of the Commission that a question of law has been posed cannot bind the Court to treat it as such. Nor can the section require the Court to answer a question where factual uncertainty or complexity is likely to render an answer conducive to confusion rather than clarification of the law.
[16] In this context, it is important to recall the scope of s 13 of the FCA, which provides that the Family Court may state for the opinion of the High Court “any question of law arising in any matter before the Court” (emphasis added). I was advised by counsel that whether funding is available, by way of appropriated funds and/or the Public Finance Act 1989, for appointments of standby counsel or lawyer assisting the court (when those appointments are made pursuant to inherent powers)
14 Cases stated at [71].
15 Blencraft Mfg Co Ltd v Fletcher Development Co Ltd [1974] 1 NZLR 295 at 303. See also Jason Bull (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HR21.4.02].
16 Commerce Commission v Harmoney Ltd [2017] NZHC 1167, as cited in Bull, above n 15, at [HR21.1.01].
17 Securities Commission v Contributory Mortgage Investments Ltd HC Wellington CIV-2008-485-792, 19 November 2008 at [9].
was not an issue arising in either of the proceedings before the Family Court. I also proceed on the basis that given Judge Parson’s advice that such appointments have been and continue to be routinely made, lawyers so appointed are being paid for their services. If not, appointments would surely have ceased. This further suggests that there is no “live” legal issue arising in relation to the funding of the appointments.
[17] For these reasons, I do not consider the third question to be properly stated to this Court for the purposes of s 13 of the FCA. Answering the question would be dealing with the issue in a complete vacuum. In addition, had I been persuaded that the question was properly before the Court, it would have been appropriate for additional parties (such as the Attorney General) to be served and given the opportunity to make submissions on the funding arrangements. In the event, counsel accepted that the third question was not appropriately before this Court, and I therefore say nothing further on it.
The proceedings from which the cases stated arose
[18] I now summarise the two Family Court proceedings in which the cases have been stated to this Court, including the purpose for which it was proposed that standby counsel or lawyer assisting the court be appointed in each proceeding.
The Care of Children Act 2004 proceeding
[19] The first proceeding, CIV-2023-404-3115, is a proceeding under the Care of Children Act 2004 (COCA) (the COCA proceeding), and concerns an application by the child’s mother to determine the parties’ son’s surname. The mother was represented in the Family Court by counsel, although I was advised that she is now unrepresented. The father is unrepresented. It is not clear whether the father wants to represent himself, or does not qualify for civil legal aid and cannot otherwise afford representation. It seems more likely to be the latter, as Judge Parsons advises that both the proceedings from which the cases stated arise involve “an unrepresented father … who is unable to engage counsel to represent him”.18
18 Cases stated at [9] (emphasis added).
[20] It has not yet been determined in the Family Court whether the COCA proceeding is a civil proceeding “concerning family violence” for the purposes of s 95(1) of the Evidence Act.19 If it is, then the restrictions on personal cross-examination of witnesses will apply and, in accordance with Irving and Ross, the role of any person appointed for the purposes of s 95(5) will be limited to putting the father’s questions to the mother.
[21] Judge Parsons advises that lawyer for the child in the COCA proceedings (apparently being of the view that s 95(1) of the Evidence Act is triggered) suggested appointing lawyer to assist the court — either pursuant to s 130 of COCA20 or pursuant to the Family Court’s inherent powers — for purposes broader than the “mouthpiece” role envisaged in Irving.
[22] Accordingly, the issue in the COCA proceeding appears to be whether lawyer assisting the court can be appointed, pursuant to either s 130 of COCA or the Family Court’s inherent powers, to conduct a full cross-examination of the mother, irrespective of whether s 95 of the Evidence Act applies.
The Oranga Tamariki Act 1989 proceeding
[23] The second proceeding, CIV-2024-404-439, relates to proceedings in the Family Court under the Oranga Tamariki Act 1989/Children’s and Young People’s Well-being Act 1989 (OTA) (the OT proceeding).
[24] The child who is the subject of the OT proceeding is presently in the custody of the Chief Executive of Oranga Tamariki and is placed out of his parents’ care. They wish to see him returned to their care, though a court-appointed psychologist does not support a return. The mother in the OT proceeding is represented by counsel. The father is unrepresented and, like the father in the COCA proceeding, I proceed on the basis that this is because he is not able to secure representation, rather than that he wants to represent himself.
19 The mother has a final protection order in her favour against the respondent father.
20 Section 130 provides that in any proceedings under the Care of Children Act 2004 (COCA) (other than criminal proceedings), a court may appoint, or direct the Registrar to appoint, a lawyer to assist the court.
[25] Judge Parsons states that lawyer for the child in the OT proceeding sought a direction that standby counsel be appointed “to represent the unrepresented father.”21 This was said to be justified on the basis that:
(a)following Croy, a trend has emerged where the Family Court has appointed lawyer to assist to perform the role of standby counsel; and
(b)the issue in the OT proceeding is very significant, and there is some evidence of the father’s lack of skills in representing himself in the proceeding.22
[26] As in the COCA proceeding, there is express power under the OTA to appoint lawyer assisting the court.23
Parties before this Court on the cases stated
[27] In the case stated from the COCA proceeding, Mr Gandy appeared as counsel for the mother and made submissions on all three questions stated. The father remains unrepresented and, while aware of the case stated, did not take any role in relation to it. Mr Sutton, lawyer for the child, appeared and made written and oral submissions on Question 2.
[28] As noted, neither the mother nor the father in the OTA proceeding is represented and, again, while being aware of the case stated, they played no part in it. The Chief Executive of Oranga Tamariki abides the Court’s decision. Mr Gubb, lawyer for the child, appeared at the hearing and made oral submissions on Question 1.
[29] The New Zealand Law Society, the New Zealand Bar Association, and the Law Association were granted leave to intervene. Ms Crawshaw KC appeared on behalf of each organisation and made detailed written and oral submissions. Mr Ross KC was also appointed as counsel assisting the court, his role being described as “to present argument in opposition” (sometimes referred to as a “contradictor”).24 To
21 Cases stated at [20].
22 There was no suggestion in the materials put before me, however, of an actual capacity issue.
23 Oranga Tamariki Act 1989/Children’s and Young People’s Well-being Act 1989 (OTA), s 160.
24 Armstrong v Powell HC Auckland CIV-2023-404-3115, 18 April 2024 [minute of Lang J].
telescope forward to Mr Ross’ submissions, he explained that while the concept of “contradictor” was used in relation to his appointment, he saw his role as requiring him to assist the Court by making independent submissions on the matters requiring determination, and not advancing a position that counsel does not in good conscience consider to have any arguable basis. Consistent with this, Mr Ross submits that he cannot support the decision in Croy v Stafford, which he says is wrongly decided.
“Lawyer assisting the court” versus “standby counsel”
[30] It is vital in answering the cases stated that there is clarity in relation to the respective roles of lawyer assisting the court and standby counsel. The Court of Appeal in Fahey emphasised that a lack of clarity can bring with it a range of practical and substantive difficulties.25
[31] A lawyer appointed as lawyer assisting the court is just that — a lawyer appointed to assist the court. The former term used, amicus curiae, literally means “a friend of the court”. This has been described as “a person who calls attention of the Court to some point of law or fact which would appear to have been overlooked.”26
[32] In Erwood v Holmes (a decision of this Court concerning the appointment of lawyer assisting the court and the proper scope of the role), Moore J stated that lawyer assisting the court will ordinarily be appointed where there is a danger that an important and difficult point of law (or, I would add, fact) will require a determination without having been the focus of argument.27 In making these observations, Moore J referred to the following explanation of the role by Brennan CJ in Levy v Victoria:28
The footing on which an amicus curiae is heard is that the person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way which the Court would not otherwise have been assisted.
25 Fahey v R, above n 8, at [60]–[63], [65]–[68], and [79]–[80]; see also Ontario v Criminal Lawyers’ Association of Ontario 2013 SCC 43, (2013) 3 SCR 3 at [50]–[55].
26 Grice v R (1957) 11 DLR (2d) 699 (ONSC) at [12], referring to P G Osborne Osborne’s Concise Law Dictionary (1st ed, Sweet & Maxwell, London, 1927) at 19.
27 Erwood v Holmes [2017] NZHC 1278 at [35].
28 Levy v Victoria [1997] HCA 31, (1997) 189 CLR 579 at 604 (footnotes omitted).
[33] Moore J further explained that “care should be taken not to encourage the role of counsel assisting the Court to become a parallel de facto legal aid system”.29 To a similar effect, he also stated:30
… [appointment of lawyer assisting the court] should not be made where the primary purpose is to assist a party in the presentation of their case in circumstances where legal aid may have been refused or for some other reason the party is unable or unwilling to access a lawyer for the purpose of representation.
[34] In Fahey, decided shortly after Erwood, the Court of Appeal surveyed the (then) current practice of appointing lawyer assisting the court in criminal proceedings. The Court observed that:
[60] It appears that counsel is typically appointed as amicus but relieved to some extent of the traditional duty to lend neutral assistance to the court itself. Rather, counsel is expected to assist the defendant and authorised to act in a partisan way. By doing so counsel may assist the court, but that is a consequence of the appointment rather than its object.
[61] The important distinction between the objectives of assisting the court and assisting the defendant is not always observed in the appointments. Our attention was drawn to examples in which the brief was both to assist the court in a neutral capacity and to assist the defendant in a partisan way, with no further detail being given about, for example, counsel’s duties to advise the defendant freely and follow instructions whether or not helpful to the court.
[35] The Court said that the difficulties that had arisen in such cases “can be managed, if not always eliminated, by separating the functions of amicus curiae and standby counsel and better defining that of standby counsel”.31 The Court went on to state that “[a]micus briefs should be confined to the traditional function of assisting the court, usually on points of law, when it appears the parties may not do so.”32 As an example, the Court referred to the appointment of lawyer assisting the court in Cumming v R, in which both the Crown and the appellant agreed that the appellant was fit to stand trial, but where counsel was needed to assist the Court in arguing the contrary position.33
29 Erwood v Holmes, above n 27, at [36].
30 At [40].
31 Fahey v R, above n 8, at [79].
32 At [80], referring with approval to the examples given in Erwood v Holmes, above n 27, at [39], of the types of tasks that may be assigned to lawyer assisting the court.
33 Cumming v R [2008] NZSC 39, [2010] 2 NZLR 433 at [20].
[36] Lawyer assisting the court accordingly does not involve the lawyer owing any duties to the any of the parties. Their duty is solely to the court.34 It is not the role of lawyer assisting the court to act as de facto counsel for an unrepresented party.35
[37] In contrast, standby counsel is appointed — at least in the criminal trial jurisdiction — to assist a self-represented defendant to the extent he or she is willing to accept assistance, and to “stand by” to assume conduct of the defence if the defendant so decides.36 The role is accordingly that of an advocate for the defence, and counsel takes instructions from the defendant.37 Standby counsel’s duties are not in principle different from those of defence counsel, save that standby counsel is accountable to the court for expenditure.38
[38] In the particular context of the Family Court, the role of lawyer assisting the court is now prescribed by s 9C of the FCA, set out at [8] above. As discussed later in this judgment,39 the enactment of s 9C was a response to the broadening use of lawyer assisting the court in the Family Court, including lawyers being appointed for the purpose of convening mediation conferences.40
[39] Importantly, s 9C is not itself an empowering provision. In other words, an appointment of lawyer assisting the court is not made pursuant to s 9C, but is made pursuant to other statutory provisions, such as s 160 of the OTA and s 130 of COCA, and — potentially, depending on the answer to Question 2 — pursuant to the Family Court’s inherent powers.41 But once appointed, s 9C prescribes the role of lawyer assisting the court,42 which is limited to fulfilling any one or more of the three key tasks set out in s 9C(1)(a) to (c).
34 Fahey v R, above n 8, at [80]; and Erwood v Holmes, above n 27, at [31].
35 R v Hill [2004] 2 NZLR 145 (CA) at [59].
36 Fahey v R, above n 8, at [81].
37 At [81].
38 At [83].
39 At [108] to [113].
40 See for example: Cabinet Social Policy Committee Family Court Review: Proposals for Reform (Ministry of Justice, Cabinet Paper, 2012); Family Court Proceedings Reform Bill (90-1); Family Courts Amendment Bill 2013 (90-3E); Reviewing the Family Court: A public consultation paper (Ministry of Justice, Consultation Paper, September 2011) at [40]–[41] and [205]; and Supplementary Order Paper 2013 (349) Family Court Proceedings Reform Bill (90-2) at 88.
41 Child Law (online looseleaf ed, Thomson Reuters) at [APN6.4.4] is accordingly incorrect when stating that “a lawyer to assist the court in general may be appointed under s 9C of the Family Court Act 1980” (emphasis added).
42 In much the same way as s 9B of the FCA prescribes the role of lawyer for the child.
[40]I make four further observations in relation to s 9C.
[41] First, and consistent with the description of the role of lawyer assisting the court discussed in Erwood and Fahey, and pursuant to subs (1)(a), the provision of independent advice to the court is to be in relation to complex factual or legal issues, as requested by the court. Lawyer assisting the court ought not to be appointed to give independent advice on routine or straightforward matters of fact or law.
[42] Second, and as observed by Katz J in Irving, subs (1)(c), which provides for lawyer assisting the court to “undertake any other task required by or under any other Act”, is broad enough to encompass lawyer assisting the court being appointed to fulfil the role envisaged by s 95(5) of the Evidence Act. However, if appointed for that purpose, the lawyer’s role will be limited to that discussed by Katz J in Irving.
[43] Third, those tasks that a lawyer assisting the court may carry out, as set out in s 9C(2), are not “free-standing” — rather, they are to be carried out for the purpose of fulfilling one or more of the three overarching roles set out in s 9C(1). Accordingly, a lawyer ought not to be appointed to assist the court solely to call any person as a witness, or solely to cross-examine witnesses called by the parties to the proceeding, unless those tasks are required in order to fulfil one or more of the roles set out in s 9C(1)(a) to (c).
[44] Finally, and consistent with the distinction between lawyer assisting the court and standby counsel, the s 9C role does not extend to acting as a de facto advocate or counsel for a party.43 Indeed, pursuant to subs (1)(a), the advice provided to the court is to be “independent” and, pursuant to subs (1)(b), the perspective offered on an issue arising in a proceeding is to be “impartial”. These concepts are the antithesis of the role of standby counsel, as described in Fahey. It would therefore be wrong to appoint lawyer assisting the court to act as standby counsel.
[45] Appointments in the Family Court of a lawyer for the predominant purpose of providing assistance to and advancing an unrepresented party’s case, analogous to the role of standby counsel described in Fahey, could therefore only be made pursuant to
43 An exception being, of course, to fulfil the task envisaged by s 95(5) of the Evidence Act 2006.
the Family Court’s inherent powers. That is, of course, the basis upon which the Judge appointed standby counsel in Croy, with counsel being directed to cross-examine Ms Croy on behalf of Mr Stafford, unshackled by the restrictions of the s 95(5) role. I therefore turn next to the principles governing the Family Court’s inherent powers.
Inherent powers
[46] The principles concerning the courts’ inherent powers are well settled. As the Supreme Court explained in Siemer v Solicitor-General:44
[113] All courts in New Zealand have inherent powers. While these powers have in the past sometimes been described as part of the “inherent jurisdiction” of the courts, we think that the term “inherent powers” more aptly describes them. “Jurisdiction” and “power” are two distinct concepts. The jurisdiction of a court is its substantive authority to hear and determine a matter. Jurisdiction may be inherent in a particular court or it may be conferred by statute. But every court has inherent powers which are incidental to or ancillary to its jurisdiction, whether that jurisdiction is inherent or statutory.
[114] In Mafart v Television New Zealand, which did not involve contempt of court, the majority judgment of this Court referred to the ancillary powers of the courts as:
… the authority of the judiciary to uphold, to protect, and to fulfil the judicial function of administering justice according to law in a regular orderly and effective manner.
The courts’ inherent powers include all, but only, such powers as are necessary to enable a court to act effectively and uphold the administration of justice within its jurisdiction. Their scope extends to preventing abuse of the courts’ processes and protecting the fair trial rights of an accused. The inherent powers of a court do not, however, extend to furthering the general public interest beyond that concerned with the due administration of justice. Examples of the inherent powers which are necessary to enable a court to act effectively within its jurisdiction include powers to dismiss or stay proceedings, to control barristers and solicitors and to issue orders to preserve evidence.
[47] The Supreme Court also confirmed that inherent powers may be exercised in respect of matters regulated by statute or rules of court, so long as the court can do so without contravening any statutory provision.45
44 Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 (emphasis added, footnotes omitted).
45 At [118], citing Taylor v Attorney-General [1975] 2 NZLR 675 (CA) at 680.
[48] The inherent powers of the District Court were recently considered by the Court of Appeal in District Court at Christchurch v McDonald.46 The Court stated:
[29] Where inherent powers arise from and support a statutory jurisdiction, such as that of the District Court, those powers must arise by necessary implication. It is tempting to describe such powers as “implied”, rather than “inherent”, but the latter usage is firmly established in relation to powers derivative from both inherent and statutory jurisdiction. A distinction between jurisdictional source of inherent powers is seldom needed; in each case the power exists only where necessary to give effect to the substantive jurisdiction. Necessity being the foundation of the power, the form such powers take is likely to be similar, regardless of jurisdictional source.
[30] In the case of statutory jurisdictions, such as the District Court, Parliament may be taken to have intended the court to be able to work effectively. Necessarily, the constituting statute cannot express all powers necessary for the court and its judges to work effectively. Some powers are implied (or inherent) in the statutory framework of the court. Of course, some powers that would otherwise be inherent may find statutory expression. That expression may also enlarge powers otherwise inherent. But the more important question here is whether statute has constrained powers otherwise inherent. As Professor Joseph has said, the general law — including statutes of general or specific application or rules of court made under statutory authority — may circumscribe inherent powers:
But a statute or rule must manifest a clear intention to oust an inherent power. The courts may exercise their inherent powers “even in respect of matters … regulated by statute or the rules of Court, providing, of course that the exercise of the power does not contravene any statutory provision.” A statutory power or rule of court that overlaps the court’s inherent power — if it does not specifically override or restrict it — may leave untouched the inherent power.
The principles just discussed are too well established to require further elaboration here.
Statutory context to the Family Court’s inherent powers
General statutory framework
[49] The Family Court is constituted as a division of the District Court by s 9 of the District Court Act 2016 and s 4 of the FCA.
[50] Section 9(b) of the District Court Act provides that “there shall be a division of the District Court, called the Family Court, to exercise the jurisdiction conferred by
46 District Court at Christchurch v McDonald, [2021] NZCA 353, [2021] 3 NZLR 585 (emphasis added, footnotes omitted).
s 11 of the [FCA].” Section 11 of the FCA in turn provides that the Family Court is to hear and determine all proceedings that are to be heard and determined by the Court under or by virtue of any of the provisions of:
(a)the Marriage Act 1955;
(b)the Adoption Act 1955;
(c)the Care of Children Act 2004;
(d)the Domestic Actions Act 1975;
(e)the Property (Relationships) Act 1976;
(f)the Family Proceedings Act 1980;
(g)the Child Support Act 1991;
(h)the Oranga Tamariki Act 1989;
(i)the Law Reform (Testamentary Promises) Act 1949;
(j)the Family Protection Act 1955;
(k)the Wills Act 2007;
(l)the Civil Union Act 2004; and
(m)any other enactment for the time being in force.
[51] The Family Court’s substantive jurisdiction is accordingly exclusively statutory.
[52]Pursuant to s 16A of the FCA, the Governor-General may, by Order in Council,
make rules regulating the practice and procedure of the Family Court. The Family
Court Rules 2002 (the Rules) were introduced pursuant to this statutory provision and have continued in force since. Pursuant to s 12 of the FCA, while any Family Court Rules are in force, all proceedings in the Family Court are to be brought and dealt with under those Rules (except to the extent that the statute under which the proceedings are brought provides otherwise). The Rules are accordingly the primary statutory source of procedure in the Family Court.
[53]Rule 3 sets out the purpose of the Rules:
3 Purpose of these rules
(1)The purpose of these rules is to make it possible for proceedings in the Family Court to be dealt with—
(a) as fairly, inexpensively, simply, and speedily as is consistent with justice; and
(b) in such a way as to avoid unnecessary formality; and
(c) in harmony with the purpose and spirit of the family law Acts under which the proceedings arise.
(2)These rules must be read in the light of their purpose.
[54] Pursuant to r 5A, no rule contained in the District Court Rules 2014 applies to proceedings in the Family Court unless specifically incorporated by the Rules.
[55] Rule 16 provides that a judge may make any directions the judge thinks proper for regulating the Court’s business. Rule 15 provides that the Court must deal with any matter not provided for by any enactment (including the Rules) under the provisions of the Rules dealing with similar matters (if possible), or:
(b)in a way decided by the court, in light of the purpose of these rules, if the court considers the matter cannot be dealt with under provisions of these rules dealing with similar matters.
However, r 13 provides that a practice that is not consistent with the Rules or a “family law Act” is not to be followed in the Court.
Statutory framework concerning appointment of lawyer to assist the court/a party
[56] A number of the statutes pursuant to which the Family Court exercises its substantive jurisdiction contain specific provisions enabling a Family Court Judge to appoint lawyer assisting the court.47 These comprise:
(a)Section 130 of the Care of Children Act 2004;
(b)Section 226A of the Child Support Act 1991;
(c)Section 162A of the Family Proceedings Act 1980;
(d)Section 166 of the Family Violence Act 2018;
(e)Section 160 of the Oranga Tamariki Act 1989;
(f)Section 65A of the Protection of Personal and Property Rights Act 1988;
(g)Section 20(2) of the Civil Union Act 2004; and
(h)Section 19(2) of the Marriage Act 1955.
[57] Companion provisions provide for the lawyer’s fees and expenses to be determined in accordance with regulations made under the FCA, or by the Registrar, and paid out of public money appropriated by Parliament for the purpose.48
[58] There is no express statutory power to appoint lawyer assisting the court in the Property (Relationships) Act 1976, the Adoption Act 1955, or the Family Protection Act 1955. Nor is there any general provision in the Rules for appointment of lawyer assisting the court. Judge Parsons nevertheless notes that appointments of lawyer
47 Schedule 2 to the FCA confirms the jurisdiction of Family Court Associates to make specific statutory appointments of lawyers.
48 See s 131(1)(b) of COCA; s 226B of the Child Support Act 1991; s 162B of the Family Proceedings Act 1980 (FPA); s 167 of the Family Violence Act 2018; s 162 of the OTA 1989; s 65B of the Protection of Personal and Property Rights Act 1988; s 20(3) of the Civil Union Act 2004; and s 19(3) of the Marriage Act 1955.
assisting the court are routinely made in proceedings under at least the Property (Relationships) Act and the Adoption Act.49
[59] Turning to a lawyer or another person being appointed to assist (or represent) a party rather than the court, it is first relevant to note that, save for some limited circumstances (mostly involving parties lacking capacity), the statutory scheme governing the Family Court’s work anticipates that not all parties will be represented by a lawyer.50 It is also relevant that Parliament has determined to whom and at what levels civil legal aid will be made available.51 The availability of state funding for private litigants has been described as “a prerogative of democratic government”.52
[60] As noted, a number of express statutory provisions require or permit appointments to be made for the representation of certain parties in Family Court proceedings. The most obvious example is the appointment of lawyer for the child.53 Others include rr 90C to 90F of the Rules, which permit or require representation by a litigation guardian in specified circumstances.54 Pursuant to s 20 of the Civil Union Act 2004, a Family Court Judge may appoint a lawyer to represent an applicant in proceedings under s 19 of that Act, “if the Judge is satisfied that the appointment is necessary or desirable.” The same power is contained in s 19 of the Marriage Act 1955. Each of these provisions concern proceedings where the applicants are 16 or 17 years old. Similarly, s 65 of the Protection of Personal and Property Rights Act 1988 provides for representation of a person in respect of whom an application under that Act is made; again because of capacity issues.
49 Case stated at [61].
50 Rule 80 of the Family Court Rules 2002 (the Rules) provides that, subject to any enactments that permit or require the Court or Registrar to appoint a lawyer for a party (examples given being s 159 of the OTA; s 166 of the Family Violence Act; s 162 of the FPA; s 7 of COCA; and r 95(4) of the Rules), “a party need not have a lawyer to act for the party in a proceeding.”
51 Legal Services Act 2011.
52 Hinds v Attorney General of Barbados [2001] UKPC 56, [2002] 1 AC 854 at [16], referred to in Fahey v R, above n 8, at [85(e)]. See also R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [76].
53 Such appointments made under, for example: s 7 of COCA; s 226 of the Child Support Act; s 162 of the FPA; s 166(1)(c) of the Family Violence Act; and s 159 of the OTA.
54 The relevant rules apply to “minors under the age of 18 years”, persons who are lacking capacity for the purposes of s 67 of the Family Violence Act, and “incapacitated persons” (as defined in r 8 of the Rules).
Question 1: Does the Family Court possess inherent powers to appoint standby counsel (as an appointment distinct from specific statutory provisions permitting the appointment of Lawyer to Assist)?
[61] None of the parties who made submissions on this question (other than Mr Gubb, lawyer for the child in the OT proceeding) consider the Family Court has the inherent power to appoint standby counsel. The applicant in the COCA proceeding, the interveners, and counsel assisting this Court all submit that Croy v Stafford was wrongly decided.
[62] For the reasons which follow, I agree that, subject to those observations at [95] below, the Family Court does not have the inherent power to appoint standby counsel.
[63] In a sense, the question asked and the answer just given are a little blunt. To be clear, therefore, in disclaiming a general implied power on the part of the Family Court to appoint “standby counsel,” I am referring to the appointment of a lawyer for the predominant purpose of providing assistance to an unrepresented party (rather than to the court), including assisting that party to advance its case. This may include, but is not limited to, fully cross-examining a witness(es) on behalf of the unrepresented party. This was ultimately the purpose for which standby counsel was appointed in Croy.55
[64] The Judge in Croy was correct when he said that there was nothing in Irving which said the Family Court cannot appoint standby counsel pursuant to its inherent powers.56 That is understandable, as the question of whether the Family Court has such an inherent power was not an issue for determination in Irving.
[65] The reliance in Croy on the Court of Appeal’s decision in Fahey as the basis for the appointment of standby counsel is problematic, given Fahey is limited to confirming the inherent power of trial courts to appoint standby counsel in criminal
55 For the avoidance of doubt, this conclusion does not mean that the Court could never appoint lawyer assisting the court and as part of that appointment, direct the lawyer to cross-examine a witness(es). But the appointment of lawyer assisting the court must be for a proper purpose, and not simply because one of the parties is unrepresented, meaning the standard of advocacy will be reduced, or the evidence might not be fully tested. This is discussed further below at [80].
56 Croy v Stafford, above n 7, at [10].
proceedings “when they think it necessary to ensure a fair trial.”57 Noting Moore J’s decision in Erwood, the Court of Appeal said that it expressed “no view about courts’ power to appoint standby counsel in the civil jurisdiction.”58 Whether the Family Court has such an inherent power must therefore be determined in accordance with those principles set out at [46] to [48] above.
[66] It is nevertheless helpful to understand why the Court in Fahey concluded that New Zealand trial courts have the inherent power to appoint standby counsel in criminal proceedings. The Court explained that such an inherent power is:59
… grounded in a trial court’s public duty to ensure that criminal trials are fair and its implied power to control its own processes to that end. It exists from necessity, since a court ordinarily cannot refuse to hold a trial where a defendant’s incompetence in advocacy brings the rights to fair trial and to self- representation into conflict. It is consistent with what we have said at [47] above about appellate courts’ approach to fair trial rights. [Namely that despite an informed waiver of representation, a trial may still be unfair in a substantive sense because the defence could not be presented without counsel.]
[67] The right to a fair trial is, of course, an absolute right affirmed by s 25(a) of the New Zealand Bill of Rights Act 1990 (NZBORA).60
[68] Even in the context of criminal proceedings and the absolute right to a fair trial, however, the Court in Fahey said that appointments of standby counsel should be rare.61 This is because:
(a)the right to self-represent (even badly) must be respected;
(b)standby counsel does not relieve the trial court of its own obligations to a self-represented defendant;
(c)in many cases, the defence can be identified and fairly put with such assistance as the court (and the prosecutor) may properly give;
57 Fahey v R, above n 8, at [75].
58 At fn 82.
59 At [75].
60 See ss 24 and 25 of the New Zealand Bill of Rights Act 1990 (NZBORA) for other protected rights of those charged with offences.
61 Fahey v R, above n 8, at [85].
(d)an informed decision to self-represent will be taken into account by an appellate court when determining whether a trial was fair; and
(e)routine appointments tend to undermine the legal aid regime.
[69] Ms Crawshaw submits that Moore J’s decision in Erwood and Campbell J’s more recent decision in Reid v Department of Corrections62 cast doubt on whether courts have the inherent power to appoint standby counsel when exercising their civil jurisdiction. Neither Erwood nor Reid directly addressed this question, but I agree that both decisions contain a number of observations relevant to whether the Family Court has such an inherent power.
[70] In Erwood, Mr Erwood (who was self-represented) brought a claim against his former lawyers for breach of duty. Despite wanting to remain self-represented, he requested that “amicus” be appointed by the Court to assist him in advancing his claim when necessary. Associate Judge Doogue declined to make such an appointment, and Mr Erwood sought a review of that decision.
[71] In declining to review Associate Judge Doogue’s decision, Moore J considered the role of lawyer assisting the court in some detail. Key aspects of his decision have already been set out earlier in this judgment.63 Moore J also commented on the financial implications of appointing lawyer assisting the court. He said:
[58] It must not be overlooked that counsel assisting are financed out of the public purse. Often there is a public interest in particular litigation which justifies the public expense associated with the appointment of counsel assisting. Where, however, the purpose of the appointment is primarily to streamline the case of a self-represented litigant in private litigation, the Court rightly hesitates before making such an appointment. That is particularly so when the litigant in question has, in the past, continued to behave in an obdurate way despite the appointment of counsel assisting.
(emphasis added)
[72] In Reid, Mr Reid, a sentenced prisoner at Auckland Prison, applied to judicially review his placement in the prison system, having regard to his security classification. Like Mr Erwood, he also applied for the appointment of “amicus”. Mr Reid had been denied civil legal aid, and he said that he needed the assistance of legal counsel to
62 Reid v Department of Corrections [2021] NZHC 1578.
63 See [32]–[33] above.
advance his case.64 Referring to the Court of Appeal’s decision in Fahey, Campbell J observed that Mr Reid appeared to be seeking the appointment of standby counsel rather than lawyer assisting the court, but said that he would determine the application on both bases.65
[73] Campbell J did not consider there to be any proper basis to appoint lawyer assisting the court; for example, to address the court on matters the parties would not.66 Turning to whether standby counsel ought to be appointed (Mr Reid’s proceedings being civil proceedings), Campbell J noted that the Court in Fahey had not expressed a view on that question.67 He went on to state:68
It is not beyond doubt that there is power to appoint such counsel in the civil jurisdiction. Assuming there is such power, it should not be exercised “where the primary purpose is to assist a party in the presentation of their case in circumstances where legal aid may have been refused or for some other reason the party is unable or unwilling to access a lawyer for the purpose of presentation.69 That is the very purpose for which Mr Reid seeks the appointment of Mr Hirschfeld. It is inappropriate to appoint a counsel to assist Mr Reid for such a purpose.
[74] A similar issue arose before Clark J in Hartley v Attorney General.70 Mr Hartley was also a sentenced prisoner. He intended to bring judicial review proceedings alleging that the Department of Corrections had denied him appropriate facilities to prepare appeals against his convictions. He had been denied civil legal aid for the proposed judicial review proceedings. His counsel sought to be appointed “in an ‘amicus type’ role to assist the Court.”71
[75] Clark J referred to Moore J’s decision in Erwood, noting that the core nature of the role of lawyer assisting the court is to assist the court and not the parties to the litigation. She also referred to Fahey, and the clear distinction drawn between lawyer assisting the court and standby counsel. She noted the Court of Appeal’s expectation that appointments of standby counsel in the criminal jurisdiction would be exceptional, and that routine appointments undermine the legal aid regime. With those
64 Reid v Department of Corrections, above n 62, at [2].
65 At [9].
66 At [10].
67 At fn 3.
68 At [11] (footnote omitted).
69 Erwood v Holmes, above n 28, at [40] per Moore J.
70 Hartley v Attorney General [2018] NZHC 2639.
71 At [3].
observations in mind, Clark J gave the following reasons for declining Mr Hartley’s application:
(a)Appointment is only to be made in exceptional circumstances, stating that “… the proceeding is a judicial review not directly engaging Mr Hartley’s criminal responsibility.”72
(b)Mr Hartley had been declined legal aid, and “appointment should not be made for counsel to assist where legal aid has been declined.”73
(c)Mr Hartley appeared capable of identifying and articulating the relevant factual and legal matters.74
(d)There was no need to appoint counsel to assist to act as contradictor, as both sides of the arguments would be put before the Court by the parties.75
(e)The pleadings did not give rise to an important point of law on which the Court will require the “assistance of an amicus”.76
[76] There was no clear articulation by Mr Hartley’s counsel, and thus by the Judge, of the actual role of the lawyer sought to be appointed on behalf of Mr Hartley — namely whether that was to be as lawyer assisting the court or as standby counsel. Accordingly, the reasons set out above address matters relevant to both.
[77] Before leaving the High Court decisions, it is also helpful to refer to some further observations of Katz J in Irving. These are particularly relevant to what appears to have been the issue arising in relation to a possible appointment of lawyer assisting the court in the COCA proceedings, as summarised at [22] above.
[78] Having confirmed the restricted role to be undertaken by a lawyer or other person appointed for the purpose of s 95(5) of the Evidence Act, Katz J briefly addressed whether “[l]awyer to [a]ssist could be appointed to perform a broader role
72 At [12](a).
73 At [12](b) (emphasis added).
74 At [12](c).
75 At [12](d).
76 At [12](e).
than that envisaged by s 95 (potentially including full-cross-examination).”77 Katz J stated the following:
[48] Obviously, where a party is unrepresented in criminal proceedings a court can appoint either counsel to assist or standby counsel, in appropriate cases. This reflects the fundamental importance of fair trial rights in the criminal jurisdiction. The appropriate parameters of the role of counsel to assist or standby counsel in criminal cases, and the circumstances in which it may be appropriate for the Court to make such an appointment, are outlined in Fahey. If the interests of justice require it, their role may involve conducting a full cross-examination of witnesses called by the opposing party, including the complainant.
[49] In the Family Court, a lawyer may be appointed to assist the court under the Care of Children Act, the Family Violence Act, or various other enactments. As set out above, the role of Lawyer to Assist in the Family Court is to:
(a) provide independent legal advice to the court on any complex factual or legal issue requested by the court;
(b) offer an impartial perspective in relation to any issue arising in the proceedings; and
(c) undertake any other task required by or under any other Act (which I have found includes putting the unrepresented party’s questions to a vulnerable witness).
[50] Section 9C(2) provides that a Lawyer to Assist may call witnesses or cross-examine witnesses called by any party. It is therefore arguable that a Lawyer to Assist appointed to perform one or more of the above roles under s 9C could be directed by the Judge to conduct a full cross-examination of the vulnerable party. Any such direction, however, should not undermine the unrepresented party’s right under s 95 to have his or her own questions put to the vulnerable witness.
[51] Further, many of the concerns expressed by the Court of Appeal in Fahey regarding the appointment of counsel to assist for the purposes of representing or benefitting a party in criminal proceedings apply with equal or greater force to civil proceedings. This is reflected in the observation in Erwood v Holmes that such an appointment should generally not be made where the primary purpose is to assist a party in the presentation of their case in circumstances where legal aid may have been refused, or for some other reason the party is unable or unwilling to access a lawyer for the purpose of representation.
[52] Of course, there will inevitably be exceptions, where it is in the interests of justice for counsel to assist to be directed (either pursuant to specific legislation or using the Family Court’s inherent powers) to conduct a full cross-examination of one or more witnesses called by the opposing party. Sharva v Sharva appears to have been such a case. Counsel to assist was appointed for the specific purpose of undertaking cross-examination on behalf
77 Irving v Irving, above n 2, at [47].
of an unrepresented party, against a party who held a final protection order. The predominant consideration, however, was not to advance the interests of the unrepresented party, but to promote the best interests and welfare of the child involved. The Judge accordingly extended the role of counsel to assist to conduct cross-examination of a s 133 psychologist report writer and also to assist the unrepresented party with presentation of his evidence.
(footnotes omitted)
[79]I make four points about these aspects of Katz J’s judgment.
[80] First, as noted earlier, lawyer assisting the Family Court may be appointed to perform any one or more of the roles set out in s 9C(1) (listed at [49] of the above extract from Katz J’s judgment). I would go further than Katz J, however, and say that it is not only “arguable” but permissible that a lawyer appointed to perform one or more of those roles could be directed to conduct a full cross-examination of a vulnerable witness. I am of the view that so long as lawyer assisting the court is properly appointed for the purpose of performing the role under either s 9C(1)(a) or (b), then, if necessary to fulfil that role, the lawyer could be directed to conduct a full cross-examination. That is clear from the plain wording of s 9C(2)(b).
[81] However, there would be no proper basis to appoint lawyer assisting the court solely for the purpose of conducting a full cross-examination (s 9C(2)(b)).78 The s 9C(2) tasks are parasitic on an appointment for the purpose of performing one or more of the roles set out in s 9C(1). And if the sole basis of appointing lawyer assisting the court is because s 95 of the Evidence Act is triggered, then, as per Irving (and Ross), that role does not extend to conducting a full cross-examination.
[82] Second, Katz J’s observations at [51] of the above extract from her judgment also cast some doubt on whether a court exercising its civil jurisdiction has an inherent power to appoint standby counsel.
[83] Third, Katz J’s observations at [52] were in relation to exceptional circumstances in which lawyer assisting the court, not standby counsel, might conduct a full cross-examination of one or more witnesses called by the opposing party. The Judge’s observations accordingly do not speak to the scope and role of standby counsel.
78 See the discussion at [43] above.
[84] Finally, it is arguable, in my view, that the role of lawyer assisting the court in Sharva v Sharva (discussed by Katz J) was inappropriately extended to assist the unrepresented party with the presentation of his evidence.79 In Sharva, the Judge proceeded on the basis that the proceeding triggered s 95(1), such that Mr Sharva (who was unrepresented) was prohibited from personally cross-examining Ms Sharva. The Judge stated that “Mr Graeme Askelund was appointed as counsel to assist for the specific purpose of undertaking cross-examination of Ms Sharva on behalf of Mr Sharva.”80 That is plainly a reference to the task required pursuant to s 95(5) of the Evidence Act. However, the Judge went on to say:
[3] Having had the opportunity to observe both parties in Court, it is now apparent to me that proceedings will be greatly aided if Mr Askelund is able to accept an extension of his role to conduct cross-examination of the expert s 133 report writer and to assist Mr Sharva in presentation of his evidence.
[85] The Judge noted that the predominant consideration in the proceedings was the welfare and best interests of Mr and Ms Sharva’s child, and that in order to “make a properly informed decision that will be in [the child’s] welfare and best interests, each side of the competing arguments in these proceedings needs to be put fully and fairly”.81 The Judge stated that she did not think Mr Sharva “[would] be able to put fully and fairly his position without assistance.”82
[86] As a preliminary point, the extension of Mr Askelund’s role for those purposes set out in the extract from the judgment in Sharva replicated at [84] above, blurred the distinction between whether his appointment was to assist the court or to assist Mr Sharva. Further, the difficulty on this approach is that lawyer assisting the court could theoretically be appointed in many cases under COCA where one or more parties are unrepresented and who are unlikely to be able to put their case as well as a trained lawyer. There was no (express) suggestion in Sharva that the Court required assistance on a complex issue of law or fact (s 9C(1)(a)). Cross-examining Ms Sharva on behalf of Mr Sharva, and otherwise assisting him to put his case, is not a lawyer giving impartial advice to the court on an issue arising in the proceeding (s 9C(1)(b)). The Judge did, however, refer to s 9C(1)(c) — it seems as the basis for the extension of
79 Sharva v Sharva [2015] NZFC 6830.
80 At [2].
81 At [4].
82 At [5].
Mr Askelund’s role.83 She referred to s 4 of COCA, namely that the predominant consideration in the proceeding was the child’s welfare and best interests. However, I do not view s 4 as a “task” required by or under any other Act for the purposes of s 9C(1)(c). Rather, it is the paramount consideration for the court in COCA proceedings.
[87] In addition, and as noted earlier, the statutory framework applicable to Family Court proceedings anticipates that some parties will be unrepresented. It is inevitable that an unrepresented party’s case is unlikely to be put as well as it could be with legal representation, or that evidence may not be fully tested. Nevertheless, as the Court of Appeal in Fahey observed in relation to criminal proceedings, in many cases, and with such assistance as the court (and the prosecutor) may properly give, the defence will be able to be identified and fairly put without a party having legal representation.84 Katz J made similar observations in Irving.85 She stated that if an unrepresented party fails to discharge their s 92 cross-examination duties, the Judge may take steps to intervene under s 92(2). Further, the Judge has the responsibility of explaining the trial process to the unrepresented party, outlining the relevant rules of evidence, and intervening as necessary to ensure overall fairness to each side, which may include giving guidance in putting questions to witnesses.86 I would also add that in many cases, lawyer for the child will have been appointed, which will provide the Court with additional assistance.
[88] To be clear, I accept that particularly in cases involving children, and where one or more of the parties are self-represented, the Court may require additional assistance in order to properly and fairly determine the issues before it. But given such assistance will be funded by public monies, the presiding judge should consider and articulate why it is that further assistance is required, particularly given the Court’s own obligations to an unrepresented litigant, and in conjunction with the assistance the Court will receive from counsel for the child (where appointed). The purpose for which the lawyer is to be appointed should also be clearly articulated, which will be prescribed by the roles set out in s 9C(1). If these steps are taken, appointment of
83 At [4].
84 Fahey v R, above n 8, at [85(c)].
85 Irving v Irving, above n 2, at [56].
86 At [56].
counsel assisting the court will be for a proper purpose, the lawyer’s role and duties will be clear, and there will not be an inappropriate blurring with a role aimed predominantly at assisting an unrepresented party.
[89] With this lengthy background in mind, I therefore arrive at the crucial question: is an inherent power to appoint standby counsel necessary to give effect to the Family Court's substantive jurisdiction? As recorded earlier, and subject to those observations at [95] below, I do not consider it is.
[90] First, the absolute right to a fair trial, enshrined in NZBORA and which underpinned the Court’s reasoning in Fahey, is absent in civil proceedings before the Family Court. There is no protected right to legal representation in civil proceedings, nor to have a party’s case fully and fairly advanced, or for evidence to be fully tested. The rights in civil proceedings which are affirmed by NZBORA are the right to natural justice, the right to apply for judicial review, and the right to bring proceedings against, and defend proceedings brought by, the Crown, and to have those proceedings conducted as they would be between private individuals.87
[91] Second, and as already stated, it is inherent in the broader statutory regime which governs Family Court proceedings that some parties will be unrepresented. Some choose to self-represent. Some want a lawyer but do not qualify for legal aid and cannot otherwise access legal assistance. It is therefore inevitable that some parties with capacity will be unrepresented in the Family Court and may do a poor job of advancing their case. Routine appointment of standby counsel to properly put an unrepresented party’s case would undermine the legal aid system.88
[92] Third, there is no doubt that some very important, and often complex, issues are determined in Family Court proceedings. Proceedings involving state agencies may also be considered different to truly “private litigation”. And the proliferation of unrepresented litigants before the Family Court undoubtedly poses real challenges for the Judges of that Court. But such concerns are likely to be met through the proper
87 NZBORA, s 27.
88 Fahey v R, above n 8, at [55(c)] and [85]; R v McFarland [2007] NZCA 449 at [52]; and Ontario v Criminal Lawyers’ Association, above n 25, at [55].
appointment of lawyer assisting the court. I should be clear that I am not suggesting that such appointments ought to be routinely made. But the ability of Family Court Judges to appoint lawyer assisting the court in appropriate cases obviates the necessity of a separate inherent power to appoint standby counsel.
[93] Fourth, there is a range of statutory provisions that ensure that parties with capacity issues are appropriately represented in Family Court proceedings.89 This further undermines the necessity of a general implied power to appoint standby counsel. I also consider it notable that none of the interveners could identify any context in which they considered the appointment of standby counsel in the Family Court to be justified on the basis of necessity.
[94] Finally, there is no doubt that the conduct of proceedings, and the administration of justice more generally, is improved if litigants have competent counsel representing or assisting them. But that is not the test for an implied power. The test is necessity.
[95] I mentioned earlier that my conclusion that the Family Court does not have an inherent power to appoint standby counsel is not absolute.90 As discussed with counsel at the hearing, given the infinite variety of parties and circumstances that come before the Family Court, a situation might arise where, for example, a party has real and substantial capacity issues, yet that person does not meet any of the statutory criteria pursuant to which the Court or a Registrar may appoint a lawyer (or other person) to represent them. In other words, the party falls into a “legislative gap”. In those circumstances, it might be that it is sufficient for lawyer assisting the court to be appointed. But in particular and exceptional circumstances, it might be necessary for the Family Court to give effect to its statutory jurisdiction to appoint standby counsel specifically to assist that party, and not the court. As noted, it is difficult to identify any such examples, and any such appointments would be exceptional indeed.91 But a
89 See [60] above.
90 See [62] above.
91 A potential example where an inherent power to appoint standby counsel might exist, at least in the High Court’s civil jurisdiction, is to assist an unrepresented respondent to an application for a Public Protection Order (PPO). Applications for PPOs, made pursuant to the Public Safety (Public Protection Orders) Act 2014 (PPO Act), are to be made to the High Court by way of originating application (PPO Act, s 104). They are therefore dealt with by the High Court exercising its civil
court is naturally hesitant to exclude altogether the existence of an inherent power for
all purposes.
[96] The answer to Question 1 is accordingly “Subject to those observations at [95], no.”
Question 2: Does the Family Court possess inherent powers to appoint Lawyer to Assist where there is otherwise no statutory basis for that appointment?
[97]In my view, the answer to this question is relatively straightforward.
[98] Appointment of lawyer assisting the court is, in all courts, a longstanding practice.92 As Mr Ross submits, it is uncontroversial.
[99] In relation to the Family Court, there are a number of statutory provisions which confer on the Court the power to appoint lawyer assisting the court.93 Parliament accordingly views the ability of the Family Court to appoint lawyer assisting the court in certain types of proceedings as a necessary “tool” in the Court’s procedural “toolkit”. I cannot identify any reason why it would be necessary for the Family Court to have the power to appoint lawyer to assist the court in proceedings under COCA, the Child Support Act 1991, the Family Proceedings Act 1980, the Family Violence Act 2018, the OTA, and the Protection of Personal and Property Rights Act (all of which contain the express power to do so), but not in proceedings under the PRA, the Adoption Act 1955, or the Family Protection Act 1955 (which do not contain an express power to do so). As Ms Crawshaw submits, it is just as likely that complex legal and factual issues will arise in PRA and Family Protection Act proceedings in particular. Accordingly, and putting aside for the moment the existence
jurisdiction. A PPO nevertheless involves the ongoing detention of a respondent in a secure facility; potentially indefinitely. Accordingly, as the Court of Appeal observed in Chisnall v Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 at [155], “the consequences of a PPO are unlike any that accompany a civil judgment.” The Court concluded (at [162]) that despite being an order made in the High Court’s civil jurisdiction, a PPO is a penalty and thus infringed the rights affirmed by ss26(2) of NZBORA. (Leave to appeal to the Supreme Court was granted, and the appeal has been heard but judgment has not yet been delivered: Attorney-General v Chisnall [2022] NZSC 77).
92 Dating back to at least the 14th century: see Ontario v Criminal Lawyers’ Association, above n 25, at [45].
93 See [56] above.
of the express statutory provisions, I am satisfied that the Family Court has the inherent power to appoint lawyer assisting the court.
[100] The key issue arising under Question 2 is whether the enactment of express statutory powers in some statutes governing Family Court proceedings has ousted this inherent power in proceedings under statutory regimes that do not contain such a power.
[101] The Court of Appeal in Taylor v Attorney General confirmed that inherent powers may be exercised in respect of matters regulated by statute or rules of court, so long as the court can do so without contravening any statutory provision.94 This issue was also at the core of the Court of Appeal’s decision in District Court at Christchurch v McDonald, in which the Court stated:95
As Professor Joseph has said, the general law — including statutes of general or specific application or rules of court made under statutory authority — may circumscribe inherent powers:
But a statute or rule must manifest a clear intention to oust an inherent power. The courts may exercise their inherent powers “even in respect of matters … regulated by statute or the rules of Court, providing, of course that the exercise of the power does not contravene any statutory provision”. A statutory power or rule of court that overlaps the court’s inherent power — if it does not specifically override or restrict it — may leave untouched the inherent power.
[102] I do not consider the Family Court’s inherent power to appoint lawyer assisting the court to have been ousted by the enactment of a similar statutory power in some of the statutes governing Family Court proceedings. I agree with Ms Crawshaw and Mr Ross that it is too much of a stretch to conclude that the enactment of those express powers, across disparate statutes, manifests a clear intention by Parliament to oust the inherent power in regimes in which no express power has been enacted. This is particularly so when the practice of appointing lawyer assisting the court in Family Court proceedings, including in proceedings where there is no statutory power to do so, is a common and longstanding practice, and where the appointed lawyers’ fees
94 Taylor v Attorney-General, above n 45, at 680, referred to in Siemer v Attorney General, above n 44, at [118].
95 District Court at Christchurch v McDonald, above n 46, at [30] (footnote omitted).
have presumably been routinely paid by the Executive. Parliament can be taken to be aware of these practices.
[103] I also note that in a 2002 preliminary paper, Family Court Dispute Resolution, the Law Commission referred to several of the statutory powers pursuant to which the Family Court may appoint lawyer assisting the court, and went on to say “[t]he Court also has an inherent power to appoint counsel to assist the court where there is no specific statutory provision”.96 The Commission accordingly saw it as uncontroversial that the statutory and inherent powers exist alongside each other. Finally, given the appointment is made to assist the court and not an unrepresented party, the proper appointment of lawyer assisting the court does not undermine the legal aid regime.
[104]The answer to Question 2 is accordingly “yes”.
[105] On the basis the answer to Question 2 was “yes”, Judge Parsons stated a supplementary question, namely “is that role similarly constrained by s 9C of the FCA (Lawyer to Assist)”?
[106] For the reasons that follow, I consider the answer to this supplementary question is also “yes”.
[107] First, on its plain wording, s 9C is not framed as being limited to appointments made pursuant to statutory powers.
[108]Second, s 9C’s legislative history also supports this conclusion.
[109] It appears that the enactment of s 9C had its genesis in a 2011 review of the Family Court by the Ministry of Justice. While researches have not located a final report arising from the Ministry’s review, the Ministry released a public consultation paper in 2011 which made some observations on the roles of professionals in the Family Court:97
40.There are a number of professionals involved in the delivery of the Family Court’s services, including: lawyers for parties, counsellors,
96 Law Commission Family Court Dispute Resolution (NZLC PP47, 2002) at [166].
97 Reviewing the Family Court: A Public Consultation paper, above n 40 (emphasis added).
mediators, lawyers for children, lawyers appointed to assist the court, specialist report writers and programme providers. Most are involved in cases concerning the well-being of children.
41.During consultation, issues were raised about the overlap between the functions performed by some professionals, and whether current practices associated with the various professionals are the best means of ensuring the welfare and best interests of children and arriving at a timely and robust outcome. The concerns include:
· a lack of role clarity, and professionals undertaking tasks that they may not be adequately trained for;
…
[110] The consultation paper also recorded that concerns had been raised in relation to lawyer assisting the court being tasked with conducting mediations:
205. Some stakeholders were also concerned that lawyers conducting mediations were less likely to be as skilled as private mediators. It was suggested that their training and background as lawyers made it more likely that they would take a positional rather than neutral approach to mediation and that they would be less able to deal with the emotions of parties that may be obstructing resolution of the dispute. Given these issues it has been suggested that lawyers appointed to assist the Court should not conduct mediations.
(emphasis added)
[111] While it is unclear how the full review was conducted, given the absence of a final report, a Cabinet Paper subsequently published by the Minister of Justice set out the proposals for reform arising from the review.98 The Paper stated:
115.The Court may appoint lawyer to assist in proceedings before it. Since the introduction of lawyer-led mediation in 2010, lawyer to assist has been appointed to undertake mediation, at a cost of $1.9 million in 2010/11. However, after the introduction of [Family Dispute Resolution] the Court will no longer provide mediation services.
116.I propose clearly defining the role of lawyer to assist, so that their appointment is appropriate, sustainable and not a proxy legal aid system for self-represented parties. In Care of Children Act cases, the Court would be able to appoint lawyer to assist:
116.1.if the Court is dealing with a new or difficult area of law, or it requires a perspective not represented by parties;
116.2.for other purposes specified in legislation; and
98 Cabinet Social Policy Committee, above n 40.
116.3. if required in the interests of justice (a high threshold). (emphasis added)
[112] Clearly at that time, the proposals related only to lawyers to assist in COCA proceedings. But it appears that the 2011 review provided the basis for the introduction of the Family Court Proceedings Reform Bill 2012 (FCPRB), which stated in its introduction that the Bill “implements the Government’s decisions resulting from a review of the Family Court conducted by the Ministry of Justice.”99 The FCPRB devolved into multiple Bills, including the Family Courts Amendment Bill 2013 (90-3E), which led to the enactment of s 9C. The explanatory note to the FCPRB touched briefly on what became s 9C, stating:
New section 9B [which became section 9C] sets out the role of a lawyer appointed to assist the court in proceedings in the Family Court under any Act.
(emphasis added)
[113] This suggests that s 9C was intended to apply to appointments of lawyers assisting the court in all Family Court proceedings, irrespective of the Act under which the proceedings were being conducted.
[114] I therefore do not consider s 9C to be limited to appointments of lawyer assisting the court pursuant to express statutory powers. It is equally applicable to appointments made pursuant to the Family Court’s inherent powers.
[115] Finally, it is worth noting that even if the role of lawyer assisting the court, when appointed pursuant the Family Court’s inherent powers, was not prescribed by s 9C, the scope of the role would be unlikely to be materially different in any event. That is because the roles set out in s 9C(1)(a) and (b) in particular are relatively broad, and are consistent with the usual purpose for appointing lawyer to assist the court, as described in cases such as Fahey and Erwood.
99 Family Court Proceedings Reform Bill (90-1).
Result
Question 1
[116] The answer to Question 1 is “no”, subject to those observations at [95] above. Subject to those observations at [95] above, the Family Court does not have inherent power to appoint standby counsel.
Question 2
[117] The answer to Question 2 is “yes”. The Family Court has inherent power to appoint lawyer assisting the court.
[118] The answer to the supplementary question to Question 2 is “yes”. The role of lawyer assisting the court is prescribed by s 9C of the Family Court Act 1980, irrespective of whether the appointment is made pursuant to an express statutory power or the Family Court’s inherent power.
Fitzgerald J
This judgment was delivered by me on 2 October 2024 at 3.00pm, pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
………………….…………….
Solicitors: Thomas & Co, Auckland
Tompkins Wake, Hamilton Crown Law, Wellington Riverside Law, Hamilton
To: A Ross KC, Auckland
V Crawshaw KC, Auckland S Wilson, Auckland
J Sutton, Auckland
And to:The respondent in CIV-2023-404-3115 The respondents in CIV-2024-404-439
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