CTM v Family Court at Auckland HC Auckland CIV-2011-404-2984
[2011] NZHC 2133
•25 May 2011
PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2011-404-2984 UNDER the Judicature Amendment Act 1972
IN THE MATTER OF an application for Judicial Review of a
decision of the Family Court at Auckland dated 17 May 2011
BETWEEN C T M
Plaintiff
AND THE FAMILY COURT AT AUCKLAND
First Defendant
AND J M W
Second Defendant
Hearing: 25 May 2011
Appearances: O Woodroffe and J Ussher for Plaintiff N M H Whittington for First Defendant L K Halford for Second Defendant
D M Sim (Counsel for the Child)
Judgment: 25 May 2011
ORAL JUDGMENT OF WHATA J
Solicitors:
Woodroffe Law Partnership, PO Box 6505, Wellesley Street, Auckland
Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140
Copy to:
Lisa Halford, PO Box 147380, Ponsonby, auckland 1144 D M Sim, PO Box 1308, Shortland Street, Auckland 1140
C T M V THE FAMILY COURT AT AUCKLAND HC AK CIV-2011-404-2984 [25 May 2011]
[1] This is an application for interim orders pending resolution of judicial review proceedings. The full set of orders sought in those proceedings are set out as follows:
(a)Prohibiting the defendants from taking any further action in proceeding FAM 2007-004-1791 in the Family Court at Auckland (“the Family Court proceedings”), and/or staying the Family Court proceedings and the hearing of the Family Court proceedings which is adjourned part- heard and due to resume on 25 May 2011, until the plaintiff’s application for judicial review, filed herein at the High Court, has been determined.
(b)Prohibiting the publication of the names of the plaintiff, the second defendant and the child that is the subject of the Family Court proceedings (“the child”), until this proceeding has been determined.
(c)Directing the first defendant to provide to the High Court and the parties to this proceeding, transcripts of legal arguments and decisions given by the Family Court where such legal argument and decisions were recorded by the first defendant but have not been included in the notes of evidence provided to the parties to the Family Court proceedings.
(d)Directing that a conference of the parties and/or their counsel be convened for the purpose of making directions as to the future progress of this proceeding including an application for an urgent or priority fixture.
(e)That the defendants pay the plaintiff’s costs of this application.
[2] The background is a custodial dispute. The plaintiff is the respondent in an application for relocation orders in the Family Court.
[3] The first defendant is the Family Court. The second defendant is the applicant in the Family Court proceedings. In substance the plaintiff seeks:
(a)stay of the Family Court proceedings pending determination of the judicial review;
(b)suppression orders to protect the identity of the children;
(c)production of information by the Family Court;
(d)case management orders.
[4] I am addressing this matter under urgency given that the Family Court proceedings recommenced this morning. I do not propose, however, to address the orders sought relating to production of information or case management. They can be dealt with in the usual way.
Specific orders sought
[5] The plaintiff seeks the following relevant orders for the purposes of this interim application:
(a)An order directing the first defendant, before deciding the outcome of the Family Court proceedings, to admit and hear submissions on the issue of the abduction, the effect of the abduction on the plaintiff and the child and the public interest, appropriate sanctions or consequences in respect of the second defendant’s breaches of orders of the Family Court and the abduction, and the likelihood of the second defendant breaching orders of the Family Court in future. (“Order 1”)
(b)An order directing the first defendant to call for and consider a cultural report under s 133 of the COCA, and allow the parties to the Family Court proceeding, and the lawyer for the child, an opportunity to submit on the cultural report and/or call and examine the writer of the cultural report, before deciding the outcome of the Family Court proceedings. (“Order 2”)
(c)An order directing the first defendant to adjourn the Family Court proceedings and hear evidence and argument on the plaintiff’s
objection to the referral in the Family Court proceeding to evidence given in another proceeding. (“Order 3”)
[6] It will be seen that the core of the plaintiff’s complaint is that the Family Court (allegedly):
(a)refused to allow evidence about an allegation of abduction of the child by the second defendant to Sweden;
(b)declined to require the preparation of a cultural report on the child pursuant to s 133 of the COCA; and
(c)admitted evidence from previous proceedings relating to the plaintiff’s first marriage to be referred to in the current Family Court proceedings.
Jurisdiction
[7] The jurisdiction to grant interim orders is provided by s 8 of the Judicature Amendment Act 1972.
[8]The basic principles are:
(a)the orders must be necessary to preserve the position of the plaintiffs; and
(b)there must be a serious issue to be tried.
[9] There is some doubt as to whether the second issue must be resolved. I proceed on the basis, however, that it does.
[10] I propose to deal with necessity first, as this presents itself as an obvious hurdle to interim relief in this context. I consider it to be insurmountable in relation to orders 1 and 2 for the following reasons:
(a)there is no final judgment or decision affecting the rights or interests of the plaintiff – we are dealing with pre-trial directions that, in the
fullness of time, will (as a minimum) give rise to a right of appeal under s 143; and
(b)in any event, based on the statement of claim as pleaded and my review of the materials:
(i) the Judge has not determined that the issue of prior abduction is irrelevant; he has simply reserved his position on relevance once he has had the opportunity to consider the merits of the present application – I am also advised that there has been considerable evidence on the issue of abduction in any event; and
(ii) the Judge has not refused the requirement for a cultural report, rather he has reserved his position as to whether a report is necessary at this stage.1
[11] In relation to order 3 I make the same point that if the evidence was inadmissible, the plaintiff has a right of appeal. There is no need to preserve the plaintiff’s position, as there is a remedy available to the plaintiff.
[12] I accept that the plaintiff wishes the trial to be conducted in a particular manner. Ultimately that may be to the prejudice of the plaintiff. But the most appropriate point to make that call and redress any prejudice is via the procedures laid down within the Care of the Children Act 2004, where all relevant matters can be considered, including, if it is a final appeal, the determination of the trial Judge.
[13] In this regard, I note for completeness that there is a right of appeal against an interim or interlocutory order of the Family Court with leave of the Family Court (Care of Children Act 2004, s 143(3)). This reinforces the point that the Act provides the more obvious route for relief for the plaintiff.
[14] I would observe also that this is not like a criminal jury trial, where we are dealing with jurors who are not legally trained. A Judge alone is well able to assess the weight to be given to evidence from a previous matter, including no weight if it
1 I refer to the statement of claim at [25] and to the oral decision at [10].
is not sufficiently probative of the matters in issue in the current proceedings. It will be for counsel to persuade the Judge of this in the normal way.
[15] Accordingly, I am not satisfied that an interim order is necessary to preserve the status quo. Moreover, I do not consider that the grant of interim relief is appropriate where substantive and interim rights of appeal remain to be exhausted.
Serious issue to be tried
[16] I must approach this through the lens of judicial review, not on the basis that this is in the context of a full right of appeal.
[17] With this in mind, the jurisdiction of the High Court on review is limited to the following:
(a)error of law;
(b)relevant/irrelevant considerations (and within that limited scope for review on errors of fact);
(c)procedural impropriety; and
(d)unreasonableness.
[18] I accept that depending on the nature of the case, greater care may be required to ensure that the decision-maker acted according to the law, especially where fundamental rights and freedoms are in issue.
[19] The present difficulty with the present application is that the pre-trial decisions require a high level of judgment and evaluation by the trial Judge. It is not obvious to me that the decisions of the Judge involve an error of law (e.g. as to his jurisdiction or scope of matters to be considered), a failure to have regard to relevant matters, or regard to irrelevant matters, or procedural impropriety (ie the plaintiff had full opportunity to make its case for different directions).
[20] It is also a matter of specialist judgment to decide when further information, including the cultural report or submission or evidence about prior abduction, might be considered. The Judge may wish to focus on certain issues and then move to other matters once he or she has a clearer picture of the case before him or her.
[21] Nor can I say that the evidence from the previous proceedings is obviously irrelevant in any jurisdictional sense. It may be prejudicial, but again we are dealing with a specialist Judge, not a jury, and he (or she) is well able to apply the appropriate weight to the evidence.
[22] In any event, it would not be for this Court on review to seek to cut down the evidence before the Family Court unless it was so obviously irrelevant and prejudicial to warrant exercise of supervisory jurisdiction. I am satisfied that that is not the case here.
[23]I therefore put the prospect of success of the review at this point as very low.
[24] Having said that, I accept that failure to have regard to probative evidence relating to the wellbeing of the child (including the prior conduct of the applicant and the cultural background of the child) may give rise to reviewable error. But I consider that it is too early in the process, especially in the absence of any final determination to exclude evidence of the Court, to be able to say that there is a serious issue to be tried.
[25] I also consider that the Family Court should be slow to exclude material that might (not necessarily will) assist in the proper resolution of this proceeding. It might be said that the Judge will carry the burden in any final decision to demonstrate why such matters were excluded from consideration, while the evidence about the plaintiff from previous proceedings was included. Clear reasons for such refusal will be needed. I consider, however, it is important to record how the Judge approached this issue, particularly in relation to the cultural report. He says:
[8] The s 5 enquiry, which I must undertake to ascertain [M’s] welfare and best interests, of course has to be based on the evidence. Ms MacNab has highlighted some areas where that evidence may be somewhat deficient. She might be right, I do not know at this stage, it is too early to say.
[9] She may be right that there is a paucity of evidence relating to [M’s] Maori heritage, her links with Maoritanga and her whanau, iwi and hapu. She may be right that there is a paucity of evidence relating to her relationships with her siblings or half siblings.
[10] I am going to be interested to hear Dr Calvert’s evidence in relation to those two points and I want to give this assurance, that if at the conclusion of the hearing I have the view that there is an inadequacy in the evidence enabling me to make the full enquiry that I am required to do under s 5 then I will adjourn the hearing to allow further evidence to come in.
[26] Nevertheless, I consider it appropriate to signal in this context the capacity of the plaintiff to seek the further assistance of this Court if ultimately she is unsuccessful in obtaining what she seeks by way of argument or evidence. Of course none of this will preclude an appeal in the normal way or the grant of stay. I simply want to afford an opportunity for the plaintiff to seek orders under urgency if necessary.
[27]On that basis I:
(a)decline to grant interim orders;
(b)reserve leave to the plaintiff to seek further orders for interim relief if, at the conclusion of the hearing, the Family Court confirms its refusal to allow:
(i) production of evidence in terms of order 1; and
(ii) a cultural report in terms of order 2.
[28] Having said that, I wish to be clear that any preemptory action by the plaintiff in seeking further relief should be avoided. It is my expectation that the plaintiff will only seek further assistance once there is a final decision of the Court.
Costs
[29]As to costs, having heard counsel, I propose to reserve costs.
Whata J
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