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Armstrong v Powell

Armstrong v Powell

Case [2024] NZHC 2820 2 October 2024

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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 Applicant

No 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Armstrong v Powell

Details

AGLC: Armstrong v Powell [2024] NZHC 2820
Case: [2024] NZHC 2820
Decision Date: 2 October 2024

CaseChat Overview and Summary

The High Court of New Zealand Auckland Registry was presented with two cases, Armstrong v Powell and Chief Executive of Oranga Tamariki, Ministry for Children v Gardiner, which raised questions about the Family Court's inherent powers in appointing standby counsel and lawyer assisting the court. The questions were referred to the High Court by Judge E B Parsons of the Family Court at Waitakere for clarification. The primary issues were whether the Family Court possesses inherent powers to appoint standby counsel and lawyer assisting the court where there is no statutory basis for such appointments. The court determined that the Family Court does not have the inherent power to appoint standby counsel, except in exceptional circumstances where a party has substantial capacity issues and does not meet statutory criteria for legal representation. However, the Family Court does have the inherent power to appoint lawyer assisting the court, and this power is prescribed by section 9C of the Family Court Act 1980, regardless of whether the appointment is made pursuant to an express statutory power or the court's inherent power.

Orders