BT v Family Court at Auckland
[2019] NZHC 2929
•8 November 2019
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
PLEASE SEE https:// judgments/
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-2410
[2019] NZHC 2929
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of a review of a decision of the Family Court at Auckland
BETWEEN
BT
Applicant
AND
FAMILY COURT AT AUCKLAND
First Respondent
AND
MT
Second Respondent
Hearing: 7 November 2019 Appearances:
A B J Morahan for the applicant
D J Perkins for the first respondent
Appearance excused for the second respondent V A Crawshaw QC as counsel assisting the Court
A J Cooke as counsel for the children in the Family Court
Judgment:
8 November 2019
JUDGMENT OF PALMER J
The judgment was delivered by me on 8 November 2019 at 3.30 pm.
Pursuant to Rule 11.5 of the High Court Rules
……………………………… Registrar/Deputy Registrar
BT v FAMILY COURT AT AUCKLAND [2019] NZHC 2929 [8 November 2019]
What happened?
[1] BT applies for judicial review of a decision by the Family Court in favour of the second respondent, MT. The care of their children is at issue in the Family Court proceeding. The decision, on 24 October 2019, determined that certain evidence would not be admissible in a three-day hearing scheduled to begin on 18 November 2019.1 The statement of claim does not plead any grounds for judicial review.
[2] Along with the statement of claim was filed, without notice to any other party, an application for interim orders declaring the Family Court should not take any further action in the proceeding, and prohibiting MT from taking any further action, pending further order of the High Court. This relief would effectively stay, or enjoin, the Family Court proceeding. The ground for the application was said to be an unspecified substantial miscarriage of justice. The reason for the application being without notice was said to be unspecified undue prejudice, delay and the interests of justice. The applicant, BT, signed the application, including the certification that the grounds for making it without notice were made out and all reasonable steps have been taken to ensure the application contains all relevant information.
[3] A memorandum was filed in support of the without notice application but there was no affidavit supporting it. In response, representing herself, MT filed and served voluminous documentation.
[4] On 31 October 2019, as Judicial Review List Judge, I decided the information before the Court did not disclose sufficient grounds for the application for interim relief to be decided on a without notice basis. I ordered the application to be served on the parties and the matter called in the Judicial Review List on 7 November 2019. That ended up being by teleconference on 7 November 2019.
1 MT v BT [2019] NZFC 8723. I have anonymised the parties in order to protect the identification of the children, who are protected by s 11B–11D of the Family Court Act 1980, per s 139 of the Care of Children Act 2004.
Appearances
[5] At the hearing, Mr Perkins, for the Family Court, was not aware the Family Court has been served with the proceeding or application. Mr Morahan advised me that service on the Family Court at Auckland was effected by email. Mr Perkins anticipates the Family Court will abide the decision of this Court, as is usual in such proceedings.
[6] Mr Cooke, counsel for the children in the Family Court, and Ms Crawshaw QC, counsel assisting the Family Court, appeared at the teleconference at my request. I thank them for that.
[7] I excused the appearance of MT, the second respondent, who was on the way to Auckland Hospital to have a medical condition treated. MT indicated Ms Crawshaw could put MT’s case. Ms Crawshaw explained she is counsel appointed to assist the Family Court, not to represent MT. But Ms Crawshaw is aware of the Family Court proceeding and could assist if required.
[8] There was no time available for a High Court hearing of the application before the Family Court’s hearing commences on 18 November 2019. I indicated I would hear submissions on the application at the teleconference.
Interim relief
Law
[9] Section 15 of the Judicial Review Procedure Act 2016 empowers a court to make interim orders of the sort sought here “if, in its opinion, it is necessary to do so to preserve the position of the applicant”.
Submissions
[10] I invited Mr Morahan to explain to me the grounds for the substantive application for judicial review, since they were not identified in the statement of claim. He could not. He referred to the Judicial Review Procedure Act 2016. He did not appear to know what grounds for judicial review are. Mr Morahan submitted the
problem for the applicant is that he cannot have his evidence presented to the Family Court, which inhibits his access to justice. He acknowledged the statement of claim might be a bit vague and may need to be amended. He explained he is an “apprentice” in the field of judicial review.
[11] I asked Mr Morahan whether the application for interim relief was supported by any evidence. He said it was not supported by sworn evidence but only by the evidence in the memorandum. Mr Morahan should know that unsworn assertions in a memorandum are not evidence, even if it is signed by the applicant personally rather than by counsel.
[12] I invited Mr Morahan to make submissions on the application for interim relief. He submitted a stay of the Family Court proceeding is essential because otherwise the application for judicial review becomes superfluous. That, he said, would be because the hearing would have taken place without all admissible evidence. I asked whether an appeal would remedy that. Mr Morahan submitted it is more difficult to appeal retrospectively and it would be more difficult to appeal a decision that evidence is inadmissible than admissible. He submitted “the logic of the timeframe is to have admissibility resolved at the hearing”.
[13]I did not require any assistance from Ms Crawshaw, Mr Cooke or Mr Perkins.
Decision
[14] There is no evidence supporting the application. There are no grounds of judicial review pleaded. There is, on the basis of the material before me, no serious question to be tried. There is no basis for the interim relief sought.
[15] The decision challenged is an evidential decision of the Family Court which, if wrong, may give grounds for appeal of the substantive decision. There is no right to appeals of interlocutory decisions, in order to prevent proceedings in the Family Court becoming unduly protracted. Contrary to Mr Morahan’s submissions, and consistent with the law of time, an appeal of a decision must occur after the decision. I do not understand Mr Morahan’s submission to the contrary. Similarly, the
inadmissibility of evidence is just as able as admissible evidence to found an appeal. So interim relief is not necessary to preserve BT’s position.
[16] The substantive Family Court hearing has been scheduled since May 2019. Interfering with it would be likely to have significantly negative effects on the timing for an important decision affecting the welfare of children. More generally, there is a risk that Family Court proceedings could become unduly protracted. A very clear case for interim relief would be necessary. As Ellis J stated in Malone v Auckland Family Court:2
… except in a very clear-cut case of fundamental error, there is a risk that the grant of an application for review of a decision made under s 143(3) [of the Care of Children Act 2004] would undermine the policy objectives that underlie that provision.
[17] And s 4 of the Care of Children Act 2004 requires that “the welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration in the administration and application of that Act”. It also states that any person considering the welfare and best interests of a child must take into account “the principle that decisions affecting the child should be made and implemented within a time frame that is appropriate to the child’s sense of time”.
[18] As things currently stand, this case is a long, long way from the sort of very clear-cut case of fundamental error that would sustain interference in a Family Court proceeding by way of interim orders. I do not consider there is a serious question to be heard, the balance of convenience favours declining the application as does the overall justice of the position. I decline the application.
[19] I order the applicant to pay the costs of any disbursements to which MT has been put in responding to the application. MT is self-represented so is not otherwise, currently, entitled to costs. But I direct that the outcome of this application be considered in any future applications for costs by BT in this proceeding.
2 Malone v Auckland Family Court [2014] NZHC 1290 at [53].
Next steps
[20]I direct:
(a)By 1 pm Tuesday 26 November 2019, Mr Morahan, on behalf of his client, must file and serve a memorandum of counsel advising whether the application for judicial review is withdrawn, in light of his submission that it is superfluous if interim relief were declined. If not, he must propose any further steps.
(b)By 1 pm Wednesday 27 November 2019, MT may file and serve a memorandum in response if she wishes.
(c)The proceeding to be called in the Judicial Review List at 9 am Thursday 28 November 2019.
Palmer J
Counsel/Solicitors:
MT in person
V A Crawshaw QC, AucklandA B J Morahan Barrister, Auckland A J Cooke, Barrister, Auckland
Andrew Seton Law Limited, Auckland Crown Law, Wellington