BHR v Tauranga Family Court HC Tauranga CIV-2011-470-505
[2011] NZHC 1882
•21 October 2011
NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS
11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CIV-2011-470-505
IN THE MATTER OF an application for Judicial Review
BETWEEN BHR Plaintiff
ANDTAURANGA FAMILY COURT Defendant
Hearing: 13 October 2011
Appearances: Applicant in Person
Mr O as a McKenzie Friend
Appearance for the Respondent excused
C M Earl as an Amicus
Judgment: 21 October 2011 at 4:30 PM
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 21 October 2011 at 4:30 pm
pursuant to r 11.5, High Court Rules
Registrar/Deputy Registrar
Date: ........................................
Solicitors: Crown Law, Wellington – email: [email protected]
Copy for: Plaintiff
C M Earl, Barrister, Hamilton – email: [email protected]
BHR V TAURANGA FAMILY COURT HC TAU CIV-2011-470-505 21 October 2011
[1] The plaintiff seeks judicial review of a decision made by the Family Court at Tauranga on 5 April 2011, dismissing the plaintiff’s application (“application”) that Mr O be permitted to attend Court hearings as the plaintiff’s lay assistant.
[2] The background to the matter is as follows.
[3] The plaintiff has issued proceedings under the Status of Children Act 1969. The plaintiff is self-represented in the proceedings. The plaintiff made the application referred to in [1] in March 2011 and, in support of the application, the plaintiff filed an affidavit she had sworn and an undertaking which Mr O had executed. The undertaking is in a standard form which, as I understand it from the report referred to below, the Court at Tauranga holds for this very purpose. In the standard form, Mr O undertakes or accepts that:
(a) as a lay assistant, his role is to take notes, quietly make suggestions and give advice to the plaintiff and to assist her with questions and submissions, but that he will not be allowed to address the Court or take an active part in the proceedings;
(b)he will, in summary, observe the confidentiality requirements which apply to proceedings before the Family Court and that he will take such steps as may be required of him to ensure that confidentiality is maintained; and
(c) he accepts that at any time the Judge may terminate his role as lay assistant for the plaintiff.
[4] The application came before the Judge on 5 April 2011. The Judge declined the application, and two others which the plaintiff made orally before the Judge in the context of her proceedings. Although the plaintiff took issue in her statement of claim with the Judge’s refusal of the other two applications, at the hearing the plaintiff advised me that the only issue she wished to pursue was that concerning her application that Mr O be permitted to attend Court hearings as her lay assistant.
[5] At the plaintiff’s request, the Judge subsequently issued a minute of her decision, the relevant paragraphs of which read as follows:
[8] There is a very clear policy in this Court that anyone who has current proceedings before this Court that are live shall not be in the Court as a McKenzie Friend or lay assistant or to be assisting another person who currently has an application in this Court. Accordingly, it is not appropriate for Mr O to be in the Court [.] [The plaintiff] has had to really deal with this by herself today, but I have explained to her that this is the process.
[6] The essence of the plaintiff’s case is that, as a matter of law, she was entitled to have her application determined on its merits and not by reference to the policy to which the Judge referred.
[7] The plaintiff seeks various orders in her statement of claim, including a copy of the policy to which the Judge referred and a declaration as to whether the said policy is consistent with relevant legal principle and legislation. The plaintiff also seeks an order appointing Mr O as her lay assistant.
[8] As this is an application for review, I am unable to grant much of the relief sought by the plaintiff. However, for reasons which I set out below I am satisfied that the Judge made an error of law in the manner in which she reached her decision and I propose to set the decision aside. I have considered whether I should determine the application and appoint Mr O as the plaintiff’s lay assistant but have decided that the best course is to remit the application back to the Family Court for reconsideration in accordance with this decision.
Hearing
[9] At the hearing, I heard submissions from the plaintiff and also from Mr Earl who had been appointed as an amicus. I also had a memorandum from counsel for the defendant, whose appearance I had excused, and a report from the Judge.[1] The plaintiff objected to my reading the Judge’s report but I had already read it prior to the hearing and have found it of assistance in reaching my decision. I also gave
permission for Mr O to be present at the hearing as the plaintiff’s McKenzie friend.
Discussion
[1] High Court Rules, r 20.15
[10] The first matter to consider is the Family Court’s jurisdiction to appoint a lay
assistant or McKenzie friend, as such assistants are often known. The name
“McKenzie friend” derives from McKenzie v McKenzie.[2]
[2] McKenzie v McKenzie [1970] 3 All ER 1034.
[11] Section 11A(1) of the Family Courts Act 1980 (“the Act”) sets out who may attend a hearing of proceedings in a Family Court. Some people may attend as of right, including the parties, and their lawyers and witnesses. Others, however, may attend only with the permission of the Family Court Judge hearing the matter. Mr O was and is in the category of persons able to attend only with the permission of the
Judge. This category includes “support persons for a party”[3] and “any other persons
whom the Family Court Judge permits to be present”.[4] I refer to this latter group as the “any other person” category.
[3] Family Courts Act 1980, s11A(1)(f).
[4] Ibid, s11A(1)(g).
[12] Section 11A(5) of the Act is also relevant to the matter of jurisdiction and reads as follows:
(5) Nothing in this section limits any other power of the Court—
(a) to hear proceedings in private; or
(b) to permit a McKenzie friend to be present; or
(c) to exclude any person from the Court.
[13] As I read s 11A(5)(b), a judge may permit a person to be present as a McKenzie friend, quite separately to s 11A(1). The significance of this is that the legislature clearly contemplated that the Court would have power to permit a party to have the assistance of a McKenzie friend present during a hearing.
[14] Turning to the plaintiff’s application regarding Mr O, the plaintiff was not seeking to have Mr O present at the proceedings as a support person. As Mr Earl submitted, s 11A draws distinctions between support persons on the one hand and
others whom the judge permits to be present. One of those distinctions is that a
support person is not permitted to assist a party to conduct their case. The plaintiff clearly wishes Mr O to assist her to conduct her case so it would be of no use to her to have Mr O present as a support person. Other distinctions which apply as between support persons and others are that a judge must agree to a request for a particular support person to be present unless the judge considers there is good reason not to do so. There is no corresponding provision applying to the “any other person category”. The Act also expressly requires a support person to leave the courtroom during the hearing if asked to do so by the judge, although whether that adds anything to s11A(5)(c) is questionable.
[15] In summary, the Judge had jurisdiction to permit Mr O to be present in a capacity which would allow him to assist the plaintiff with the conduct of her case, whether that jurisdiction derived from s11A(1)(g) or from a power to allow a party to have a McKenzie friend present. It does not matter which, in the circumstances.
[16] As to how a party should make such an application, Mr Earl submitted that there is no express provision in the Family Court Rules 2002 (“Rules”) which sets how an application pursuant to s 11A should be made. Mr Earl did, however, refer me to r 16 which provides that the Family Court has power to regulate its own procedure. There is also an express direction to the Court, in both the Act and the Rules, that the Court should conduct its proceedings so as to avoid unnecessary
formality.[5]
[5] Family Courts Act 1980, s 10(1) and Family Court Rules 2002, r 3(1)(b).
[17] The second issue which arises concerns the manner in which the Judge determined the plaintiff’s application.
[18] I have already set out the relevant paragraph of the Judge’s minute. Insofar as the report provided by the Judge is concerned, the following paragraphs concerning the policy referred to in the minute are relevant:
[2] The so-called “policy” or guidelines for the exercise of judicial discretion whether or not to permit any particular person to act as a McKenzie friend for a litigant in the Family Court (also called a lay supporter, or with many Maori, a kaitiaki) has its recent origins, in the
catchment of the Tauranga Family Court and its immediate circuit, in events earlier last decade.
[3] When I was first appointed a Family Court Judge to sit in Tauranga, in March 2001, a significant proportion of cases concerning (then) custody and access to children involved members of the Union of Fathers, or their supporters. These litigants were self-represented and sought a McKenzie friend to assist them in their Family Court proceedings in virtually all cases.
[4] Many of those proposed McKenzie friends were themselves involved in current Family Court litigation concerning their own children.
[5] [Another Judge] and I formulated a guideline policy that generally it would be inappropriate to allow any person who had extant litigation concerning their own children before the Tauranga Family Court or its circuit Courts to act as a McKenzie friend.
[6] In adopting this approach we recognised the tension between a litigant’s freedom to choose their own legal representation or own proposed McKenzie friend and the obligation of the Court, in the exercise of its discretion in such matters, to seek to maintain the integrity of the Family Court adjudication process, by avoiding deliberate or inadvertent confusion between extant cases (that of the current litigant, and that of the proposed McKenzie friend). We were also mindful of the need not to allow, or appear to allow, an opportunity for a proposed McKenzie friend to advance his or her own political or personal agenda through another’s Family Court case.
[7] In its general application, that policy or guideline seems, from a judicial perspective, to have worked well as indeed, many of the present McKenzie friends supporting other lay litigants are now members, or former members of the Union of Fathers whose own litigation in this court has been concluded. Those McKenzie friends seem to provide sterling advice and support in many of those cases that come before me.
...
[14] Whilst I have perhaps inadvertently used the word “policy” to characterise the approach which [the Judge] and I initially adopted, and which now has been continued by the present cohort of Family Court Judges sitting in the Tauranga Court and circuit, a better word might have been to describe it as a “guideline,” acknowledging that each case must be determined on its own facts, balancing the tension which I have referred to.
[19] The plaintiff submitted that the Judge was required to determine the plaintiff’s application on its merits, taking into account those matters which were relevant to the application and disregarding any matters which were irrelevant. The plaintiff submitted that the Judge erred because she determined the application by
reference to the policy she referred to in her minute and the effect of that policy was to rule out certain persons, such as Mr O, as a matter of course.
[20] Mr Earl submitted that a decision maker may have regard to a policy in the course of making the decision but that any such policy must not be inflexible and must allow scope for consideration of the individual case. Mr Earl submitted that there will have been an error in the deliberative process if a policy is applied in such a way that the policy, rather than the person entrusted with the decision, effectively determines the outcome.
[21] In my view, a judge who is required to determine an application such as that made in this case must identify and consider those matters which are relevant in the context of the particular case and must then grant or dismiss the application on the basis of those matters. The Judge did not follow this process. Rather, the Judge determined the application by reference to a policy. I consider the Judge fell into error accordingly and, given that, I set aside the Judge’s decision to dismiss the application and remit the matter back to the Court for reconsideration.
[22] The relevant factors to be taken into account in determining the application were not addressed before me in any detail. Mr Earl referred me to several authorities which address the role of a lay assistant.[6] One of those, C v M, and another case Y v Y, address the special considerations which arise in the proceedings before the Family Court in New Zealand and therefore will be particularly helpful to the Court.[7]
[6] Collier v Hicks (1831) 2 B & Ad 663 ER 1290 at 1292; McKenzie v McKenzie [1970] 3 All ER
1034; Mihaka v Police [1981] 1 NZLR 54; In the matter of the children of Mr O’Connell, Mr Whelan
and Mr Watson [2005] EWCA CIV 759, [2005] 2 FLR 967.
[7] C v M (1995) 13 FRNZ 705; Y v Y 2002] NZFLR 509.
[23] The only comment I make is that, first, as I have said above s 11A(5)(b) clearly contemplates that a party may have the assistance of a McKenzie friend in the conduct of their proceedings. Secondly, as the Judge herself notes in her report, the starting point is that deference is to be shown to the fact that the plaintiff considers that Mr O is well placed to assist her in the conduct of her case. Thirdly, the Court
must be satisfied, as far as possible, that the proposed lay assistant will comply with
the duties which accompany the role so that the proceedings and court processes are not affected adversely. In that regard, Mr O’s undertakings are important. In her report, the Judge expresses reservations as to the manner in which Mr O has previously conducted himself in proceedings in which he has been a party and, if that is a fair assessment (and the plaintiff and Mr O do not consider that it is), undertakings of the type given in this case would not have to be taken at face value. For completeness, I record that Mr O conducted himself appropriately for the short period in which the plaintiff was in front of me.
Result
[24] I set aside the decision of the Family Court at Tauranga on 5 April 2011, dismissing the plaintiff’s application for permission to have Mr O attend her proceedings. I remit the said application back to the Court for reconsideration. Costs are to lie where they fall.
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PETERS J
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