D v Chief Executive of Oranga Tamariki Ministry for Children
[2023] NZHC 2366
•29 August 2023
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,
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-980
[2023] NZHC 2366
IN THE MATTER OF The Care of Children Act 2004 BETWEEN
D
Appellant
AND
CHIEF EXECUTIVE OF ORANGA TAMARIKI – MINISTRY FOR CHILDREN
First Respondent
N
Second RespondentCont/…
Hearing: 22 August 2023 Appearances:
Appellant in Person
S Jerebine and J McCarthy for the First Respondent Second Respondent (by VMR)
H Cuthill, Court appointed lawyer J Niemand, Lawyer for Child
Judgment:
29 August 2023
JUDGMENT OF BECROFT J
This judgment was delivered by me on 29 August 2023 at 9am pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
D v N [2023] NZHC 2366 [29 August 2023]
CIV-2023-404-559
UNDERThe Bill of Rights Act 1990, the High Court Rules 2016, the Crimes Act 1961 and the Care of Children Act 2004
BETWEEN D
Applicant
AND N
First Respondent
MANUKAU DISTRICT COURT
Second RespondentCIV-2023-404-1536
UNDERThe Senior Courts Act 2016 s 171 District Courts Act 2016 s 217
Declarations Act 1908 High Court Rules 2016
NZBORA 1990, s 9, s 14, s 19, s 27
Human Rights Act 1993 s 21
BETWEEN D
Appellant
AND JUDGE ANTONY MAHON
First Respondent
CHIEF EXECUTIVE ORANGA TAMARIKI
Second Respondent
N
Third Respondent
What are these appeals about?
[1] Since at least 2018, the appellant (Ms D) and the respondent (Mr N), have been involved in parenting proceedings regarding the care of Ms D’s two children. They are now aged 11 and 9 years old. Mr N is the father of the younger child.
[2] The background regarding the care arrangements for these children is addressed in detail in judgments dated 24 August 2020,1 31 March 2022,2 31 October 2022,3 and 28 April 2023.4 The procedural history is now quite complicated. Ms D has pursued numerous applications, interlocutory applications, and appeals in all levels of the Courts. As best as I can understand the history, and to the extent it is necessary to do so, I summarise it as follows.
[3] From April 2019 to April 2021, the children were living in the day-to-day care of Mr N.
[4] From April 2021 to July 2021 a final parenting order was in force requiring the children to live in the equal shared care of Mr N and Ms D.
[5] From July 2021 to December 2021, Ms D was overseas—mainly in Australia—and the children remained with Mr N. In or around December 2021, Ms D returned to New Zealand and, on application to the Family Court at that time, the children were ordered to remain in the day-to-day of Mr N. Contact with their mother was to be supervised.
[6] The children are currently under the guardianship of the Family Court. The Chief Executive of Oranga Tamariki has been appointed as the agent for all guardianship decisions, apart from day-to-day care.
1 [N] v [D] [2020] NZFC 7185.
2 [D] v [N] [2022] NZFC 2091.
3 [D] v [N] [2022] NZFC 9600 [31 October 2022 decision].
4 Re Chief Executive of Oranga [2023] NZFC 4165 [28 April 2023 decision].
[7] Mr N has been appointed as the Court’s agent in respect of provision of the children’s day-to-day care and to be responsible for the children’s living arrangements. The Chief Executive has the responsibility of supervising Ms D’s contact with the children upon clearly specified terms.
[8] Ms D has filed a number of appeals against various decisions of Judge Mahon in the Manukau Family Court in relation to the ongoing parenting dispute.
[9] On 9 August 2023, Powell J consolidated three sets of appeal proceedings.5 Powell J also refused leave for D to call further evidence in respect of any of the appeals.
[10] The three appeals are against the following decisions of Judge Mahon, in chronological order:
(a)31 October 2022: dismissing Ms D’s applications to stay/vary interim parenting orders; and declining to transfer proceedings to the High Court.6
(b)28 April 2023: dismissing Ms D’s application for final parenting orders; granting final parenting orders in favour of Mr N; and setting out draft guardianship orders.7
(c)27 June 2023 (with reasons on 11 July 2023):8 dismissing Ms D’s application for Judge Mahon’s recusal.9
[11] This decision is being issued under urgency. The next hearing of this matter is in the Family Court at Manukau on 29 August. It is important that the results of these appeals are available for that hearing.
5 [D] v Chief Executive of Oranga Tamariki – Ministry for Children [2023] NZHC 2108.
6 31 October 2022 decision, above n 3.
7 28 April 2023 decision, above n 4.
8 [D] v [N] [2023] NZFC 7292 [Recusal reasons judgment].
9 [T] v [N] [2023] NZFC 6804 [Recusal outcome judgment].
Is there a jurisdictional bar to most of the appeals?
[12] Counsel appointed to assist the Court (Ms Cuthill), counsel for the Chief Executive of Oranga Tamariki (Ms Jerebine and Ms McCarthy) and lawyer for the children (Mr Niemand) agree that all but one of the appeals are interlocutory and/or interim and, as such, first require the leave of the Family Court.10 As Ms D has not sought and been granted leave, this Court would not have jurisdiction to hear these appeals.
[13] The one appeal that all counsel agree I do have jurisdiction to hear is the final order in the 28 April 2023 decision dismissing Ms D’s application for a final parenting order for day-to-day care of the children. Ms D’s current on-notice application for interim parenting orders was also dismissed.
[14] As a consequence of that decision, Mr N’s application for day-to-day care of the children was made final. The Judge noted that Mr N had consistently been assessed as a loving and competent parent who gave the children ongoing stability in their everyday lives.
[15] Ms D was greatly surprised by these submissions as to jurisdiction, although they had been foreshadowed in detailed but recent written submissions filed by all counsel. Ms D had come prepared to argue the merits of all the appeals; she wants them all heard promptly given that the next fixture for the parenting matters—a review of the current interim guardianship order—is scheduled to be heard before Judge Mahon in the Manukau Family Court on 29 August 2023.
[16] In Ms D’s view, the submissions were part of a pre-determined plot to deprive her of a substantive hearing to challenge what she regards as the “lawless and error- ridden” decisions of Judge Mahon. Nevertheless, the jurisdictional points raised by all counsel are important, unavoidable, and need unpacking.
10 Care of Children Act 2004 [COCA], s 143(3).
Law on the jurisdictional point
[17] Section 143 of the Care of Children Act 2004 (the COCA) relevantly provides as follows:
143 Appeals to High Court
(1)This subsection applies to a decision of the Family Court or District Court, in proceedings under this Act (other than criminal proceedings), to—
(a)make or refuse to make an order (other than an interlocutory or interim order); or
(b)dismiss the proceedings; or
(c)otherwise finally determine the proceedings.
…
(3) A party to proceedings under this Act in the Family Court or District Court in which an interlocutory or interim order is made, or a child to whom those proceedings relate, may, with the leave of the Family Court or District Court (as the case requires), appeal to the High Court against the order.
…
(Emphasis added)
[18]The policy reasons behind this provision were explained by Judge Burns in
T v E:11
The policy reason behind this section is to prevent proceedings in the Family Court being unduly protracted. If there was an automatic right to appeal of interim decisions, then a person who had greater resources or wanted to use tactical procedures could appeal such decisions, and with the normal time frames that would pass before the appeal is to be dealt with, it could make any particular case unduly protracted. Parliament considers the better course of action is to have the case concluded and then when a final order is made that can be the subject of an appeal. The High Court can reverse the decision if satisfied that the appeal has merit. Also the Family Court is a specialist Court and deals with issues arising in this case on a daily basis.
[19] In Malone v Auckland Family Court, after citing the above passage, Ellis J said, “the Family Court is required by s 143(3) to play what has been described as a ‘gatekeeping’ role in relation to interlocutory appeals.”12
11 T v E FC Auckland FAM-2007-004-2481, 2 July 2008 at [4].
12 Malone v Auckland Family Court [2014] NZHC 1290 at [29].
[20] Counsel also agree that the definition of “interlocutory application” provided in r 8 of the Family Court Rules 2002 is relevant in determining the meaning of that phrase used in s 143. Rule 8 provides as follows:
8 Interpretation
(1)In these rules, unless the context otherwise requires,—
…
interlocutory application—
(a)means an application in proceedings or intended proceedings for an order or a direction relating to a matter of procedure or for some relief ancillary to the orders or declarations sought in the proceedings or intended proceedings; and
(b)includes—
(i)an application for a rehearing; and
(ii)an application to review an order made, or a direction given, on an interlocutory application
[21] The wording of s 143(3) is self-evidently wider than r 8. Section 143(3) refers to both interlocutory and interim orders. By comparison, r 8 refers only to interlocutory applications.
[22] The application of s 143 of the COCA was recently considered by Dunningham J in Creswell v Roberts.13 In that case the mother of the two children concerned filed a notice of appeal in the High Court against the order of the Family Court issuing a warrant for the uplift of the children, and a without notice application for an order staying the execution of the warrant. The Court initially granted an interim stay of the warrant pending a decision on the appeal.
[23] On appeal, the Court considered that the decision to issue the warrant was properly characterised as an interlocutory order under s 143(3).14 Therefore, the Court did not have jurisdiction to grant the stay because the appeal had not been properly filed—in that leave had not been sought and obtained from the Family Court.
13 Cresswell v Roberts [2023] NZHC 1970.
14 At [54].
[24]In reaching these conclusions, Dunningham J noted:15
The practical effect of what the mother seeks in appealing the decision to issue a warrant is a decision that the s 105 order be rendered ineffective despite all her appeal rights being exhausted. That is plainly the kind of appeal where the Family Court's “gatekeeping” role under s 143(3) should apply.
The 31 October 2022 decision
[25] In his 31 October 2022 judgment, Judge Mahon dismissed applications by Ms D to stay and vary the interim parenting order. Those applications were prompted by Mr N’s arrangements for care of the children—which he made while out of New Zealand working as a pilot—including his employment of an au pair. Judge Mahon dismissed the applications, ruling that Mr N was entitled to make the arrangements as part of the day-to-day care of the children.16
[26] In the same judgment, the Judge declined Ms D’s request to transfer the proceeding to this Court on the basis there were insufficient grounds for such an order.17
[27] All counsel agree that the decision not to stay or vary the interim parenting order arose out of applications for interim or interlocutory orders. Those applications did not seek to otherwise finally determine the proceeding. In other words, those decisions were in respect of interim orders and applications which are clearly interlocutory applications.
[28] Ms D, understandably and simply, submitted that she considered the decision was “final” because it was issued by the Court. She did concede that matters had progressed significantly since the October 2022 decision. However, she still wished the appeal to be heard so that she could obtain several outcomes. These include a declaration that Judge Mahon’s decision was in error; a factual finding that Mr N’s actions were wrong and unjustified; and that his perjury has caused her trauma and profound suffering.
15 At [58].
16 31 October 2022 decision, above n 3, at [13] and [20].
17 At [39].
[29] In my view, both the stay and variation decisions are properly regarded as interlocutory matters arising in the course of proceedings that had not been finalised in respect of an interim parenting order. Accordingly, this Court does not have jurisdiction to hear the appeal without leave of the Family Court.
[30] The portion of the October decision dealing with an application to transfer the proceedings to the High Court is more difficult. All counsel agreed that the transfer decision concerned an interlocutory application that arose in the course of proceedings and was an application not seeking final relief. It amounted to no more than an application, made in the course of extant proceedings, for a transfer out of the Family Court. It was also submitted that the relevant statutory provisions permitting such a transfer—s 125(4) of the COCA and s 14 Family Court Act 1980—both refer to proceedings currently before the Court and an application being made in respect of those proceedings or any part of those proceedings. All counsel argue that this clearly implies that a transfer application is an interlocutory application. I agree.
[31] My only concern is that where there are a series of interim orders made over a long period as a case develops, it may be some time before a final order is made and the opportunity for appeal arises. In effect, the benefit of any successful appeal would have been long gone. Indeed, this is the case here. Twenty-two months have elapsed since the decision refusing transfer. By the time it can be considered on appeal, the horse will have bolted in respect of that argument. However, I consider that this concern is tempered by the ability of the Family Court to grant leave in these situations.
[32] If I am wrong in my conclusion that the transfer decision is interlocutory, I later go on to consider the merits of Ms D’s appeal of this decision.18
28 April 2023 decision
[33] It is agreed that the part of the April 2023 decision which dismisses Ms D’s application for final parenting orders for day-to-day care of her children is properly the subject of an appeal. I will deal with this later.
18 Covered in this decision at [89] to [94].
[34] However, the part of the decision that deals with the review of the extant guardianship order and interim and safe contact between Ms D and her children, is in a different category. It is an interim decision.
[35] Ms D was surprised to learn this was not a final decision. I have some sympathy with her views. After a first reading of Judge Mahon’s decision, I must say, with respect, that it is less than clear to me as to the status of this part of the decision and of the resulting guardianship order. There was nothing in the decision that explicitly referred to the order as being interim. The order itself was silent as to its status.
[36] However, on closer reading, the decision does not finalise the terms of the guardianship order. The Judge also made clear that it required a review in August—a fact consistent with it being an interim order.
[37] As if to exemplify the room for confusion, Mr Boon, for the Chief Executive, sought clarification from the Judge after the decision was issued as to whether the guardianship order was a final or interim order.
[38] In a set of directions issued by Judge Mahon on 13 July 2023, but inadvertently not released to the parties until mid-August 2023, Judge Mahon made clear that the decision was interim. He was explicit about this clarification. His Honour also made clear that Ms D’s remaining parenting application for contact with her children and a decision as to whether the interim guardianship order is made final, must proceed to a final hearing as soon as possible.
[39] I agree with Ms D that Judge Mahon labelling the guardianship decision as interim does not necessarily make it so. But it is a very good indication, and I would take some persuading to find otherwise. Ms D was very suspicious of Judge Mahon’s explanation and his directions. For example, she suggested the Judge used the word interim in his clarification “deliberately” and “deceitfully” because he knew Ms D would then require leave from the Family Court to appeal. In Ms D’s submission, it was a “calculated and unfair clarification” designed to thwart and effectively deprive her of her appeal rights.
[40] Again, I have some sympathy for Ms D’s direct and clear concerns on this point. A decision and the order resulting from it should make the position clear. However, in these circumstances I am quite satisfied the guardianship part of the April 2023 decision is an interim order that requires the leave of the Family Court before an appeal may proceed.19 Such leave has not been obtained, and accordingly this Court does not have jurisdiction to hear this appeal.
[41] I need to observe that the guardianship order should be finalised as soon as reasonably possible so that Ms D can exercise her right to appeal. Even given the enormous pressure that the Manukau Family Court is under, finalising this matter and Ms D’s parenting application for increased contact with her children should be accorded all possible priority.
[42] In the course of her argument, Ms D raised her concern that Oranga Tamariki were not consulting her before making decisions about the care of her children. It was her understanding that she would be consulted—she drew my attention to Judge Mahon’s 13 July 2023 clarification of his 28 April 2023 decision to that effect at [4]. Oranga Tamariki considered that this concern was not properly part of the present appeal. As best I could understand, and for the limited time available for Oranga Tamariki to make inquires, it does appear that consultation is not taking place. This is clearly a matter for Judge Mahon to address at the 29 August 2023 hearing.
27 June 2023 decision (with reasons on 11 July 2023)
[43] The recusal decision is quintessentially an interlocutory matter. It arose in the course of a proceeding seeking substantive relief. It clearly satisfies the definition of “interlocutory” in r 8. All counsel agreed that it is not a final order. It can only be appealed with leave of the Family Court, which has not been sought. Accordingly, this Court does not have jurisdiction to hear the appeal.
[44] Mr Niemand did note that Ms D feels this matter keenly, and in his view, the relationship between the Judge and Ms D has broken down. I have not heard argument on this matter. I can only observe that Judge Mahon seems entirely justified in refusing
19 COCA, s 143(3).
the recusal application. It seems without merit—for the reasons he sets out. As I explained to Ms D, it is not uncommon that litigants, particularly in the Family Court, are on the receiving end of a succession of adverse decisions. That does not mean that a Judge is biased or demonstrates a lack of impartiality. I can see that this reality is very difficult for her to accept.
[45] At the end of the day’s hearing, and after all submissions had been completed, Ms D enquired as to whether I would transform her appeal in respect of the “recusal decision” into a judicial review of the decision. That suggestion came too late in the day. It would have been unfair on the other parties to do so. I had received no argument on the substantive point, let alone the procedural implications. I record that I reject Ms D’s late application.
Dismissal of Ms D’s application for a final parenting order as to day-to-day care
[46] I turn now to Ms D’s appeal in respect of Judge Mahon’s decision to dismiss her application for a final parenting order for day-to-day care of the children. Ms Jerebine and Ms Cuthill oppose the appeal and support the Judge’s decision. Mr Niemand, on more technical and what might be called “legal purist” reasoning, supports the appeal.
Judge’s reasoning summarised
[47] In dismissing Ms D’s application for day-to-day care, Judge Mahon considered the following matters, amongst others, as relevant:
(a)Ms D had not established permanent accommodation in Auckland and/or was refusing to provide clear details about her current living arrangements.
(b)Ms D had not addressed concerns identified in a previous judgment about her approach to Mr N and discussions with her children about him, her behaviour, and the ongoing parental proceedings.
(c)Ms D’s ongoing litigation and litigious approach, including attempted private criminal prosecutions against Mr N and his mother, who are two of the three most important adults in the children’s lives. This litigation, and Ms D’s refusal to accept that the children are safe and secure in their father’s care, meant that the Court could not contemplate the children currently living in her day-to-day care. Judge Mahon observed that Ms D continued to make claims that have previously been rejected and showed that she cannot or will not change her behaviour. If anything, he observed, “her vendetta against [Mr N] and his mother has intensified.”20
(d)The finite resource of the Family Court and the significant costs associated with the case.
[48]With those factors as a backdrop, the Judge concluded:21
I have concluded there is no prospect that [Ms D] will succeed in her application to day-to-day care of the children. To allow the application to continue to final hearing potentially delays finalising parenting arrangements for a further twelve months given the current scheduling of long cause hearings. The children would continue to be uncertain about their day-to-day parenting. This is not in their welfare or best interests when [Ms D’s] application for day-to-day care has no chance of success.
The law on appeal
[49]It is accepted that this is a general appeal by way of a rehearing.22
[50] As noted by this Court in Rosen v Guy “[t]he appellant is entitled to a full right of appeal, which includes this Court’s own assessment of the circumstances of the case against the requirements of the Act. But whilst appeals proceed by way of rehearing, it is a rehearing not a new hearing.” 23
[51] It is necessary for Ms D, as the appellant, to satisfy the Court that it should reach different conclusions than those reached by Judge Mahon.
20 28 April 2023 decision, above n 4, at [70].
21 At [73].
22 COCA, s 143(4); and District Courts Act 2016, s 127.
23 Rosen v Guy [2022] NZHC 1973 at [14] (footnotes omitted).
[52] I note this Court’s comments in AP v AZ that for general appeals under the COCA, the “… inquiry goes beyond simply whether the original judgment was right or wrong in the application of the law, but extends to an inquiry about what outcome is in the best interests of the child.”24
[53] Finally, I also note the Supreme Court’s comments in K v B which describe the appellate court’s approach on general appeals in COCA matters:25
… [T]he important point arising from Austin, Nichols is that those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion involves an assessment of fact and degree and entails a value judgment … In any event, as the Court of Appeal correctly said, the assessment of what was in the best interests of the children in the present case did not involve an appeal from a discretionary decision. The decision of the High Court was a matter of assessment and judgment not discretion, and so was that of the Family Court.
Ms D’s grounds for appeal – discussion
[54] Associated with this appeal, Ms D filed over 550 pages as a bundle of documents to rely on. She made fulsome submissions in Court. Her grounds of appeal are widespread and, at times, difficult to distil. As best I can, I set out and deal with each of her grounds as follows, though not necessarily in the order that she presented them.
Was the decision made without a proper and final hearing?
[55] In fact, the hearing to dismiss Ms D’s application for day-to-day care, was clearly signalled and previous decisions provided her with ample notice of this.
[56] For example, in his 31 March 2022 decision, Judge Mahon made the following comment:26
[104] I placed [Ms D] on notice that she is at risk of being declared a vexatious litigant if her approach to this case does not fundamentally change
…
24 AP v AZ [2020] NZHC 1340 at [36] per Grice J.
25 K v B [2010] NZSC 112, [2011] 2 NZLR 1 at [32]–[33] (footnote omitted).
26 [D] v [N] [2022] NZFC 2091.
[105] The parties have competing applications for final parenting orders and usually directions would be made now to progress this case to a final hearing. However, [Ms D] has not complied with the directions made for the December hearing as she failed to put forward a realistic proposal for the children’s care. I have given details of the evidence [Ms D] needs to provide to the Court. If she does not provide the required evidence within the timetable I direct in this judgment, she risks her application for a parenting order being dismissed on the grounds it has no realistic chance of success.
[57]In his 31 October 2022 decision, Judge Mahon made a similar comment:27
Her continuing prosecution of proceedings without supporting evidence raises the issue of whether she has reasonable basis for her application of day-to-day care of the children to proceed to a final hearing.
[58]And in his 28 April 2023 decision, Judge Mahon noted that:28
[55] The parties were given notice that the Court would consider dismissing [Ms D’s] application for a final parenting order for day to day care of the children. In the judgments dated 31 March 2022 and 31 October 2022 and conference directions [Ms D] was made aware of the evidence required to persuade the Court that her application had a prospect of success.
[59]The inevitable conclusion is that Ms D had clear notice of that issue.
Was the decision lawless and without basis?
[60] Judge Mahon carefully set out the power to dismiss Ms D’s application for day- to-day care, arising under s 140 of the COCA.
140 Power to dismiss proceedings
The court may dismiss proceedings before it under this Act if it is satisfied—
(a)that the proceedings relate to a specified child, and that the continuation of the proceedings is, in the particular circumstances, clearly contrary to the welfare and best interests of the child; or
(b)that the proceedings are frivolous or vexatious or an abuse of the procedure of the court.
[61] Judge Mahon noted the recent High Court decision of Fransson v Fransson which clarifies the relationship between s 140 of the Act and the power to strike out proceedings under r 193 of the Family Court Rules.29
27 Above n 3, at [43].
28 Above n 4.
29 Fransson v Fransson [2022] NZHC 1749.
[62] Judge Mahon noted that the proper basis under which to make his decision was s 140(a) of the COCA which, in his view, was a higher threshold for dismissing these proceedings. I accept that Judge Mahon’s direction for the dismissal of Ms D’s application could only be made if, in the particular circumstances, continuation of the proceedings was clearly contrary to the welfare and best interests of the children.
[63] In Fransson, the Court held that in proceedings under the COCA, s 140 must be used, not r 193. Section 140 has a different test and slightly different focus than r 193. I am satisfied that the Judge used the correct test.
Did the decision disregard legislative provisions and common law?
[64] Ms D submits that the decision disregards ss 4–5 of the COCA, court rules, the New Zealand Bill of Rights Act 1990, the Family Violence Act 2018 and general legislation and common law.
[65] In my view, Judge Mahon correctly identified that in all proceedings under the COCA, the paramount consideration is the welfare and best interests of the children in terms of ss 4 and 5. He also considered s 6, in terms of the requirement to take into account the children’s views and noted that the children would wish to see more of their mother.
[66] The Judge also mentioned the pressure on the children due to unresolved matters. He held that Ms D’s contact was the primary reason why final orders had not been made and that this had created uncertainty for the children. He did note, and this is surely correct, that the scheduling of long cause hearings was a concerning issue for Ms D, outside of her control, albeit compounded by her continuous filing of applications.
[67] The children’s views were recorded as wanting a return to shared care. In my view, all the evidence in the two-day hearing was properly considered in respect of the correct legal principles and provisions.
Was the decision in the children’s best interests and for their welfare?
[68] Judge Mahon seems acutely aware of this factor. Indeed, it was the primary reason for him dismissing/striking out Ms D’s application. In my view, he considered the relevant evidence, and I note that the children were independently represented at the substantive hearing by Mr Niemand, as lawyer for the child. It appears he did so competently and put all relevant matters before the Court.
Was Judge Mahon biased?
[69] I have already covered this point earlier, but I summarise it here as it was also raised in respect of this appeal. It has been addressed by Judge Mahon in a separate decision in a different and related matter. All counsel agree that Ms D’s application for Judge Mahon’s recusal, and his decision refusing to do so, must be regarded as purely and essentially interlocutory. The application and the decision arise in the course of substantive proceedings. I accept counsels’ submission on this point. Nevertheless, it can properly be raised in an appeal of a final order/decision.
[70] Ms D cannot point to anything, other than a succession of decisions that are averse to her, that supports the conclusion that a fair-minded lay observer might reasonably apprehend that Judge Mahon might not bring an impartial mind to the resolution of the question he was required to decide.30
[71] I accept that on a previous occasion, Harland J dealt with similar bias allegations made by Ms D against Judge Mahon. She found that Judge Mahon’s order in a previous situation restricting Ms D’s communication with the Registry, breached natural justice. Ms D relies on this finding. However, Harland J also made the following crucial overall finding about Judge Mahon’s alleged bias:31
[87] I can see nothing in the material provided to me which indicates any evidence of bias against [Ms D], either actual or apparent, in relation to the treatment of her applications by Judge Mahon. Her claim in this regard is dismissed.
30 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122, [2010] 1 NZLR 76 at [4], citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
31 D v Family Court at Manukau [2021] NZHC 2326.
[72]I reach a similar decision to Harland J.
[73] I accept that Ms D had been advised in advance by Judge Mahon of the prospect of a s 140 dismissal, on multiple occasions. His dismissal decision was based on a summary of her proposals and circumstances, and that summary, in my view, matches the notes of evidence.32
[74] My sense of Judge Mahon’s approach, not that Ms D will necessarily see it this way, is that he bent over backwards to understand Ms D’s concerns and gave her considerable leeway. And he left open (as I discuss later) that he was very prepared to look at increasing Ms D’s contact with her children. I reach, what in my view, is an inevitable rejection of bias allegations, acutely aware of the reality, as submitted by Mr Niemand, that Ms D’s “relationship” with Judge Mahon in the Manukau Family Court appears, from her point of view, to have irretrievably broken down.
Was the decision made fairly and with proper fact discovery?
[75] Ms Cuthill emphasises, which I accept, that the Family Court operates as an adversarial system. It was open to Ms D to put relevant matters to the witnesses during her cross-examination and to include relevant matters within her evidence-in-chief by way of affidavits. Given the number of hearings involving cross-examination and further submissions, it is difficult for Ms D to submit she has not had ample opportunity to put the facts of her case squarely before the Court.
[76] Ms D alleges that Judge Mahon excuses child abuse and threats of strangulation despite there being a pending protection order application yet to be heard. The strangulation incident and other physical abuse disclosures were addressed in the evidence by both parents and by the children’s social worker. They were also the subject of cross-examination. For instance, Ms D cross-examined the children’s social worker at length about the Oranga Tamariki investigation outlined in the 22 November 2022 report.
32 Notes of Evidence dated 8 December 2022 at 42–46.
[77] Judge Mahon has clearly preferred the evidence of the social worker and was entitled to do so. The Judge considered the allegations and disclosures as required by ss 5(a) and 5A of the COCA. In 2021, Judge Tan had considered earlier allegations under the Family Violence Act 2018—issuing a judgment in September 2021. Judge Mahon had regard to that judgment and the findings that were made therein.
[78] I understand Ms D has quite a different view about the threats of strangulation and the excusal of an incident where Mr N pushed the older child, then wearing socks, so that he slipped and fell to the ground. But in no way, in my view, can Judge Mahon’s decision be said to excuse child abuse.
[79] Ms D also alleges that Mr N has made false and misleading submissions to the Court. However, this was not pursued in her argument before the Court and, in any case, it is not clear what the false and misleading submissions are. I note that since the hearing the Court has received a memorandum from Ms D concerning these allegations. Having viewed that material, I am unable to accept Ms D’s submission. And in any event, Mr N’s submissions were certainly not material to Judge Mahon’s conclusions.
[80] Ms D’s submissions to the Court revealed her deep-seated concern with each and every decision made against her. She interprets each of these decisions as being deeply flawed and the result of clear bias against her. Frequently, it seems to me, her grounds for appeal are the result of adverse credibility findings made against her and in support of Mr N. She has very negative views of Mr N and his ability to care for the children. She said to me she was infuriated by Mr N’s approach. She emphasised to me her concerns were not “hysterical” or “irrational” and that her children continued to live in an unsafe and abusive environment. These are all matters that Ms D feels strongly about. But I am quite clear that they colour her judgment, and make it very difficult for her, as one of the two parties caught up in her parenting application, to make objective and clear submissions.
Mr Niemand’s “support” of the appeal
[81] Mr Niemand did not support the decision, primarily based on his understanding of the concepts of “day-to-day care” and “contact”. While he accepted that the “day- to-day care” application had been dismissed, in his view, this could have ramifications for future decisions regarding “contact”. The definition of “contact”, in s 8 of the COCA refers to both direct and indirect contact. In his view, this can be contrasted with the definition of “day-to-day care” which includes care that is provided for on one or more specified days or parts of days. His concern was that, if an increase in Ms D’s “contact” was contemplated—for instance to contact in weekends, beginning, conceivably, on a Friday evening at, say, 5 pm and concluding at, say, 8 am on a Monday morning—such “contact” may not be legally permissible given that some judges may perhaps see such “contact” as actually being “day-to-day care” which Judge Mahon has ruled out—at least for the next two years.33
[82] In other words, Mr Niemand’s argument is that on a strict interpretation of “day-to-day care”, increased “contact” or at least much increased “contact” might not be permitted. By dismissing the day-to-day care application, it might be that other Judges feel that Judge Mahon has foreclosed on wider daily, or more than daily, “contact”.
[83] However, Mr Niemand conceded that in all his considerable experience, he had frequently come across orders for day-to-day care being given to one parent while another parent had significant “contact” in the way of contact over some days in a week or weekends.
[84] Ms Cuthill emphasised that very wide “contact” for a parent who did not have “day-to-day care” of a child was entirely common, practical, and pragmatic. No counsel knew of any decision on the point nor could not provide further assistance. In
33 Section 139A of the COCA prevents the commencement of new proceedings without leave of the Court if those proceedings are substantially similar to previous proceedings, within two years of a final direction/order being given in the previous proceeding. The Court may only grant leave if there has been a material change in the circumstances of a party to the previous proceeding, or any child who was the subject of the previous proceeding.
the end, I have come to the view that Judge Mahon’s decision does not prevent contact being expanded. Indeed, he made that explicit in his decision when he said:
[80] I have not dismissed [Ms D’s] application for a final parenting order as to contact because of the close relationship [the children] have with her.
[85] I also note that this conclusion is also supported by comments made by Judge Mahon during the hearing.34 For example, Judge Mahon said “[t]his was intended to be an interim measure to try and reintroduce [Ms D] to the children.”
[86] Therefore, Judge Mahon made clear that there were stepping-stones to increased contact. For the sake of clarity, I emphasise that, if for some reason it is not Judge Mahon who deals with the contact application, it is clearly envisaged by all parties that a time may come when Ms D demonstrates a proper basis for her “contact” with her children to be increased.
[87] But I do not think Mr Niemand’s submissions, made from a purist’s point of view, will prevent the sort of increased “contact” that Judge Mahon, himself, has clearly foreshadowed. If it was ever the case, hypothetically, within the next two years, that Ms D’s increased care was considered by another judge to amount to “day- to-day care” she could seek leave to apply to the Family Court to be given such care.
Conclusion
[88] I have endeavoured to consider all Ms D’s submissions that were, in various ways, ventilated at her two-day hearing. In my own assessment of the circumstances of this case, analysed against the legal requirements of the COCA, I have reached the same conclusion as Judge Mahon. I am simply not satisfied that I should differ from his decision
The decision to refuse transfer of proceedings to the High Court
[89] If I am wrong in my previous conclusion that the “transfer decision” is an interlocutory decision for which leave of the Family Court should have been sought,
34 Notes of Evidence dated 8 December 2022 at 33.
and that it can be the subject of a direct appeal, then the first thing to say about Judge Mahon’s decision is that he correctly identified the relevant law in his decision.35
[90] I accept Ms Cuthill’s submission that the Family Court is the specialist court for COCA matters and has specialised knowledge needed to weigh up the complexities that often arise in this type of case.
[91] Judge Mahon further identified at [39] that the Family Court is familiar with the options available to retain outside agencies to promote the welfare and best interests of children and can deal with applications more speedily than the High Court.
[92] In my view, there is nothing in the facts of this case, or the legal arguments, that indicate complexity justifying a transfer to the High Court. I record Ms Cuthill’s submission that:
The complexity in this case arises primarily due to [Ms D’s] combative and litigious behaviour. The volume of paperwork filed by [Ms D] takes time and resource to consider and to parse the arguments that are presented, but the submissions, themselves, do not have legal complexity.
[93] I also agree with Ms Cuthill’s submission that Ms D’s reliance on Cooper v Maule,36 is misplaced. That case can be distinguished on its facts, and it involved relationship property proceedings and a transfer in terms of s 38A Property (Relationships) Act 1976.
[94] I would not have reached a different conclusion to Judge Mahon on this point— there is no justification for transferring the proceedings to the High Court. Certainly, any perceived bias that Ms D believes Judge Mahon has against her is not a ground for doing so. In my view, his decision was entirely conventional, principled, and correct.
35 31 October decision, above n 3, at [33].
36 Cooper v Maule [2020] NZFC 9113.
Result
[95] In respect of the appeals against the decisions which I have concluded are interim or interlocutory decisions, there is no jurisdiction to hear the appeals without the leave of the Family Court. As that leave has not been sought, the appeal notice must be regarded as a nullity. Ms D can pursue these appeals, but only with leave or when final decisions have been made. I endeavoured to carefully explain this to her.
[96] In respect of that decision which can be appealed, or where conceivably an appeal might lie (the transfer decision), the appeals are dismissed.
Costs
[97] I record the considerable assistance provided by Ms Cuthill as counsel appointed to assist the Court. Ms Jerebine and Ms McCarthy for Oranga Tamariki and Mr Niemand as Lawyer for the Child have provided careful and helpful submissions. Ms D has been polite, but her arguments have not been focused and were not always on point. I note that Mr N filed brief written submissions and was content simply to observe proceedings on AVL.
[98] Ms Cuthill has asked for a costs order against Ms D. In fact, she considered an order for increased or indemnity costs in this case, but on balance does not pursue that. There appears to be good reasons for a costs award to be made against Ms D.
[99] In the event the parties cannot agree on costs, I make the following directions. Ms Cuthill is to file submissions within ten working days from the date of this decision as to the exact nature and amount of the costs award she seeks. Then Ms D within ten working days of her receipt of Ms Cuthill’s submissions, is to file submissions in reply. All submissions are to be brief—no more than three pages (excluding schedules).
Solicitors/Counsel:
Becroft J
Niemand Peebles, Hoult, Hamilton; S Jerebine, Auckland; J McCarthy, Auckland; H Cuthill, Auckland. Copy to: D and N
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