DN v Family Court at Auckland
[2020] NZHC 210
•19 February 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-1087
[2020] NZHC 210
UNDER the Judicature Review Procedure Act 2016 IN THE MATTER
of a decision under the Care of Children Act 2004
BETWEEN
DN
First Applicant
LN
Second ApplicantAND
FAMILY COURT AT AUCKLAND
First Respondent
SL
Second RespondentKQ
Third Respondent
Hearing: 4 December 2019 Appearances:
D A T Chambers QC for the Applicants
V A Crawshaw QC for Second Respondent K N Crooks for the Third Respondent
A C M Fisher QC & K Swadling for the New Zealand Law Society, intervener
S P Jerebine, counsel assisting the CourtJudgment:
19 February 2020
JUDGMENT OF DUFFY J
This judgment was delivered by me on 19 February 2020 at 1:30pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
DN v FAMILY COURT AT AUCKLAND [2020] NZHC 210 [19 February 2020]
[1] This judicial review proceeding is brought in the context of a contact dispute in the Family Court, where the maternal grandmother is seeking contact with two children and the father of the children and his wife (their step-mother) oppose contact. The children are said not to want contact with their grandmother. The key issue is whether Judge Burns acted lawfully when he ordered a psychological report pursuant to s 133 be obtained.
Factual Background
[2] The children are aged 11 years. The children’s mother died in 2016 in tragic circumstances. Both children suffered from ADD and anxiety before their mother’s death, which has understandably exacerbated these conditions. They receive treatment from a paediatrician Dr S.
[3] The children’s parents were engaged in proceedings in the Family Court before the mother’s death. Psychological reports on the children were obtained on 18 May 2011 and 28 February 2014. Since the mother’s death the father and step-mother have assumed the role of primary caregivers.
[4] The grandmother filed an application in the Family Court on 23 June 2017 for a parenting order granting her regular and extended contact with the children. The basis of the grandmother’s application was that the father and step-mother had stopped allowing contact with the grandchildren.
[5] The grandmother’s application was opposed by the father and step-mother. They raised similar concerns to those that were raised against the children’s mother before her death, namely that the mother and grandmother were manipulative, emotionally abusive, and would attempt to undermine the children’s relationship with their father.
[6] An issues conference in the Family Court was scheduled for 27 November 2017. In the lead up to this conference, lawyer for the children was to interview the children. However, she was unable to interview them beforehand. The father and
step-mother sought to have the issues conference adjourned for this reason but that did not happen.
[7] What occurred in the lead up to the issues conference is set out in the judgment of Courtney J dated 4 July 2018.1 Lawyer for the children had filed a report advising she had not interviewed the children. It is clear she had experienced some problems. First, although she had been appointed in August 2017, the Family Court did not advise her of the appointment until 6 October 2017 and did not send the relevant documentation until 9 October 2017, at which time she was advised her report was required by 16 October 2017. She filed it on 17 October 2017. She later tried unsuccessfully to file a second report on Friday 24 November 2017 and ultimately this was handed up by her to the Judge at the issues conference.
[8] At the issues conference on 27 November 2017, Judge de Jong released a minute ordering a s 133 report, pursuant to the Care of Children Act 2004 (COCA). A Court appointed psychologist was to assess the following:
(a)The children’s views about having a relationship with their grandmother;
(b)Identify what, if any, influences/external pressures are likely to have affected the children’s views;
(c)The children’s relationship with each party;
(d)The effect, or likely effect, on the children of having, or not having, a relationship with their grandmother;
(e)The advantages and disadvantages for the children of the proposed contact options;
(f)Make recommendations about what, if any, therapeutic support or intervention is required for this family.
1 AA v Family Court at Auckland [2018] NZHC 1638.
[9] Judge de Jong’s minute prompted the father and step-mother to commence judicial review proceedings in this Court challenging the orders made in the minute by claiming the Judge had pre-determined his decision and failed to take mandatory considerations into account. This was because:
(a)His statements in the hearing suggest that he had already formed his view as to the s 133 report before the hearing;
(b)It was more likely than not that he had prepared his brief outlining the scope of the s 133 report before the hearing; and
(c)It was premature to direct a s 133 report before the lawyer for the child had spoken both to the children’s doctor and the children themselves.
[10] On 4 July 2018, Courtney J upheld those claims.2 Relevantly, Courtney J found that at the outset of the issues conference no-one was seeking an order for a s 133 report.3 Nevertheless, Judge de Jong expressed the view “we need a s 133 report straight away”.4 Following this statement, lawyer for the children then said she thought a s 133 report should be obtained.5 Courtney J concluded that the way the matter was dealt with at the hearing coupled with the prepared brief of instructions for the report writer indicated pre-determination on the part of Judge de Jong.6 Accordingly, Courtney J found the pre-determination ground of review was established.7
[11] Courtney J also found the alternative judicial review ground was established.8 This was that Judge de Jong had failed to address the relevant mandatory considerations in s 133(6) and (7). Counsel for the father and step-mother had argued that until lawyer for the children had spoken with Dr S and the children themselves it was premature to direct a s 133 report. Here Courtney J found:
2 AA v Family Court at Auckland [2018] NZHC 1638.
3 Above at [28].
4 Above at [29].
5 Above at [29].
6 Above at [31].
7 Above at [30].
8 Above at [31].
[31] …Of particular concern in this case is that it was known to the Court, from the affidavits that had been filed by Mr and Mrs A and from Ms Chambers’ submission on the day, that the children were being treated for anxiety. Plainly, Dr [S] represented a significant, possibly even the best, source of information about the children and their current state of mind, taking into account the effect of their medication and their progress to date.
[32] In these circumstances, it is difficult to see how the Court could have been satisfied that a psychological report was essential for the proper disposition of the application without knowing what Dr [S] had to say. For example, Dr [S’s] input might indicate that it is not in the children’s best interests to be interviewed at this stage and that further time is desirable or that the brief for the psychological report writer should be different to that directed by the Judge, or it might provide sufficient information to conclude that a report is not necessary. Either way, an important source of information existed and, until the Judge knew more about the information that Dr [S] had to offer, the statutory threshold was not met.
[12] Regarding s 133(7) Courtney J found the requirements of this provisions were overlooked as well:
[33] Nor have the views of the children been taken into account in making the decision that a s 133 report was required, as required by s 133(7). The children are of an age where it would be usual to seek their views and incorporate those views into the decision-making process. That is a task that fell to lawyer for the children and could be obtained prior to a decision being made about a s 133 report.
[13] Accordingly, Courtney J remitted the matter to the Family Court for further consideration.
[14] It is what happened in the Family Court next that prompted the father and step- mother to bring this judicial review proceeding.
[15] On 9 October 2018, Judge de Jong issued a minute disqualifying himself from dealing with the parties’ Family Court proceeding. In this minute Judge de Jong claimed that Courtney J’s decision was “extraordinary” in that it attacked his “honesty and integrity as a Judge”.9 Judge de Jong then laid out in some detail the reasons behind his decision, including some thoughts on whether children’s views should be sought before seeking a s 133 report. He noted that he did not agree their views were
9 Minute of Judge de Jong, 9 October 2019.
required under s 133(7). This statement was contrary to what Courtney J had found in her decision.10
[16] The father and step-mother were upset by the contents of the minute of 9 October 2018. They have applied to the Family Court for recall of the minute, but to date my understanding is that their recall application has not been dealt with by that Court. This step was taken by them because they were concerned the content of the minute of 9 October 2018 might unduly influence another Family Court Judge who subsequently came to re-hear the parties’ contact dispute.
[17] Following Courtney J remitting the orders made by Judge de Jong back to the Family Court for re-consideration it was of course necessary for the Family Court to re-visit whether it was appropriate to order a s 133 report or not, in light of Courtney J’s decision. The matter came before Judge Burns. On 18 December 2018, he delivered a judgment in which he found that the children’s views did not need to be ascertained before a s 133 report could be commissioned because:11
(a)Children are not “parties” for the purposes of s 133(7). Section 133(7) provides that:
If the court is entitled by subsection (6) to act under subsection (5) and if the court knows the parties’ wishes about the obtaining of a psychological report or can speedily obtain them, the court must have regard to the parties’ wishes before deciding whether or not to act under subsection (5).
(b)Obtaining a psychologist report is not a “matter affecting a child” under s 6 of COCA. This is because deciding whether to obtain a psychologist report is a procedural matter – not a question of actual outcomes. Section 6 intends for children’s views to be obtained for the overall outcome, not for procedural directions. This distinction is important as if children’s views were required for a s 133 report, they would then also be required for a raft of other procedural matters. This would lead to a sliding slope that would cause delays in family
10 See AA v Family Court at Auckland [2018] NZHC 1638 at [33].
11 KQ v DN [2018] NZFC 9614.
proceedings. As a result, there is no requirement that a child’s views be obtained for a psychologist report under s 6.
(c)Whether a report should be obtained falls under the “best interests considerations” that the lawyer for the child is able to decide under s 9B of COCA. If lawyer for the child considers that getting the child’s views is in their best interest, they can do so. But the legislation is silent on whether lawyer for the child is required to obtain children’s views for procedural directions.
(d)It would be circular if children’s views opposing a psychologist’s report were to be taken into account. This is because there is always a risk that if a child provides their views, they will be open to manipulation. Judge Burns considers that “it would inevitably be contended that the views have been influenced”.
(e)Paragraph [33] of Courtney J’s decision is obiter and not part of the ratio of the decision, and therefore Judge Burns concluded he was not bound by it. There were no binding directions in Courtney J’s decisions pertaining to the need to ascertain the children’s views.
[18] After concluding that the children’s views were not mandatory considerations, Judge Burns went on to consider whether a s 133 report should be commissioned. He reached the conclusion that a psychological report would be the best source of information on the impact on the children of a loss of relationship with their grandmother. Judge Burns rejected obtaining expert evidence from Dr S on the ground his expertise did not qualify him to provide expert opinion on the issues at hand, and there were real concerns that the children had been influenced in their views. Judge Burns found that it was vital that the Court obtained the assistance of a psychologist due to the competing cases presented by the parties that raised significant and real psychological issues.
The pleadings
[19]The grounds of review are:
First cause of action
(a)Judge Burns failed to take into account the mandatory relevant considerations in s 133(6) and (7);
(b)In the present case s 133(6) required Judge Burns to seek and obtain the evidence of Dr S on the children’s state of mind prior to ordering a s 133 report because of:
(i)The express direction of Courtney J at [31] to [32] of her judgment;
(ii)The children were being treated for anxiety by Dr [S] and so he represents a significant source of information about the children and their current state of mind.
(c)In the present case s 133(7) required Judge Burns to take into account the children’s wishes because of:
(i)The express direction of Courtney J to that effect at [33] of her judgment;
(ii)Section 6 of the COCA provides that children must be given opportunities to express their views and those views must be taken into account where there are “matters affecting the child.”
(d)The s 133 order was made without due regard to the statutory criteria in ss 6 and 133 of the COCA, Article 12 of the United Nations Convention on the Rights of the Child (UNCROC) and contrary to the express and binding direction of Courtney J.
Second cause of action
(e)The Judge relied on an irrelevant consideration – an ultra vires report from the lawyer for the children. This report was contrary to “Lawyer
for child: selection, appointment and other matters practice note 1” and “Lawyer for the child best practice guidelines note 2A” and UNCROC.
Third cause of action
(f)The Judge breached the principles of natural justice, in that he failed to first deal first with the recall application of the “highly prejudicial minute” by Judge de Jong on the Court file.
(g)The failure to deal with the recall application is also in breach of the statutory obligations imposed on the Judge by s 4 of the COCA.
The parties
[20] The father and step mother are the applicants. The Family Court at Auckland (the Family Court) is the first respondent and it has given notice that it abides the decision of this Court. The lawyer for the children in the Family Court is the second respondent. The grandmother is the third respondent. The New Zealand Law Society was granted leave by this Court to intervene and be heard.12 This Court appointed counsel to assist the Court as contradictor for the purpose of advancing arguments in support of the Family Court relevant to the third cause of action.13
Discussion
Was Courtney J’s decision binding on Judge Burns?
[21] A distinguishing feature of this judicial review is that Judge Burns’ decision to order a s 133 report was made in circumstances where Courtney J in this Court had already made factual and legal findings on the earlier order of Judge de Jong to obtain a s 133 report, those being to set the order aside and direct the matter be re-considered by the Family Court. The findings Courtney J made on the pre-determination grounds of review related solely to Judge de Jong’s decision. However, the findings Courtney J made on the alternative grounds of review, which related to whether Judge de Jong
12 DN v Family Court at Auckland [2019] NZHC 2028.
13 Minute of Palmer J 8 August 2019.
had paid proper regard to the relevant considerations in s 133(6) and (7), were relevant to how the re-consideration in the Family Court was to be undertaken.
[22] Courtney J found that in the circumstances of these children in this case, Judge de Jong could not be satisfied a s 133 report was essential for the proper disposition of the grandmother’s application without first knowing what Dr S had to say about obtaining a s 133 report. Until his views were known the statutory threshold in s 133(6) was not met. Courtney J also found that in this case s 133(7) required the lawyer for the children to obtain the children’s views before a s 133 report was obtained. In short, Courtney J found that Judge de Jong had not paid proper regard to the relevant considerations in s 133(6) and (7).
[23] There is nothing to suggest there was any material change in the children’s circumstances following the delivery of Courtney J’s judgment. Nor did anyone who was a party to the judicial review before Courtney J appeal against her judgment. The first question, therefore, is to what extent was Judge Burns, as the Family Court Judge who was re-considering whether to order a s 133 report for the children, bound to follow the directions and reasoning of Courtney J.
[24] This brings into question what it means to remit a decision back to the original decision-maker to be considered afresh. This concept is well established in law. Once a decision has been remitted, the decision-maker is to consider the matter de novo, as if the first decision had not been made.14 However, in undertaking this reconsideration s 17(6)(c) of the Judicial Review Procedure Act 2016, provides that the decision- maker must have regard to the reviewing Court’s reasons and to any directions provided by that Court. The effect of this provision is to require the decision-maker to adhere to the reasoning of the Court who remitted the decision.15 In short, the decision of the reviewing court will be binding.16
14 Raukawa Settlement Trust v Waitangi Tribunal [2019] NZHC 383 at [13].
15 Chesterfield Preschools v Commissioner of Inland Revenue (2009) 24 NZTC 23,148 at [60] and [87].
16 Comptroller-General of Customs v ACI Pet Operations Pty Ltd (1994) 121 ALR 347 (FCA). Here, the Court stated that the decision maker could not act inconsistently with the reasoning or directions provided by the reviewing Court.
[25] This approach was made abundantly clear in a series of litigation involving Chesterfields Preschools Ltd and the Commissioner of Inland Revenue, whereby Chesterfields Preschools successfully reviewed a decision of the Commissioner.17 Following the successful review, this Court remitted the decision back to the Commissioner who then declined to follow the directions of the Court. Chesterfields Preschools subsequently brought a second judicial review and here, this Court held that the Commissioner “was bound as a matter of law” to adhere to the reasoning of the first reviewing Court, and was redirected to do so.18 On a subsequent appeal by the Commissioner, the Court of Appeal remarked that the Commissioner’s concession that he was indeed bound by the first reviewing decision, both in terms of legal and factual findings, was a concession well made.19
[26] It follows that Judge Burns was required to act consistently with the reasoning of Courtney J and in accordance with her findings on fact and law. It was not open to Judge Burns to disregard the reasoning of Courtney J on the need to obtain the views of the children and Dr [S] before a s 133 report was ordered. I reject the contention on which Judge Burns relied that the reasoning of Courtney J was merely obiter. The reasoning was necessary to dispose of the second cause of action. Accordingly, it forms part of the ratio decidendi of Courtney J’s judgment. The Family Court is bound by the findings of both fact and law on which that reasoning rests. That is the very nature of the doctrine of precedent.
The opposing arguments
[27] The grandmother was the respondent directly affected by the first cause of action. However, I acknowledge that the lawfulness of Judge Burns’ decision was also relevant to the second cause of action, which was focussed on the actions of the lawyer for the children. Counsel for the lawyer for the children was largely responsible for advancing the opposing arguments relevant to the first cause of action, with the support of the grandmother. The essential basis of those arguments is that the doctrine
17 Chesterfields Preschools Ltd v The Commissioner of Inland Revenue (2007) 23 NZTC 21,125.
18 Chesterfields Preschools Ltd v Commissioner of Inland Revenue (2009) 24 NZTC 23,148 at [60], [87] and [118].
19 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2010] NZCA 400, (2010) 24 NZTC 24,500 at [4].
of precedent yields to the welfare and best interests of the children. So Judge Burns was free to apply his own interpretation of s 133 to the question of whether to order a s 133 report or not. This submission relies on s 4 of COCA, under which the paramount consideration is the children’s welfare and best interests. The New Zealand Law Society and the contradictor did not address the merits of this argument.
[28] Whilst I accept that s 4 will always influence decisions on the merits of cases that engage s 4, I do not accept that s 4 can trump fundamental constitutional principles relevant to judicial process. The doctrine of precedent is one such principle; it “serves to ensure certainty and predictability within our legal system”.20 Adherence to this principle is one of the means by which the rule of law is observed.21 Conversely, when a court of lesser jurisdiction ignores the binding decisions of a senior court this threatens adherence to the rule of law.
[29] Moreover, here Courtney J’s decision was made through this Court exercising the supervisory jurisdiction of judicial review of the Family Court. The right of access to this Court to engage the supervisory function is another fundamental constitutional principle.22 When a decision maker under review ignores the decision of this Court in exercising its supervisory function that also threatens the rule of law. I consider these fundamental principles trump s 4 of COCA, or in the alternative another way of looking at the matter is to say that adherence to fundamental constitutional principles is something that will always be in children’s welfare and best interests. Accordingly, for the Family Court to do otherwise can never be in the welfare and best interests of children. Thus, there is no conflict between s 4 and the requirement for Judge Burns to comply with the findings of fact and law made by Courtney J.
[30] During the hearing counsel for the New Zealand Law Society interjected and argued that the case before Courtney J had not proceeded on the basis the children’s views needed to be considered before a s 133 report was ordered. Counsel for the father and stepmother, who were the plaintiffs in that judicial review, disputes this. I
20 Dustin v Weathertight Homes Resolution Service HC Auckland CIV-2006-404-00276, 25 May 2006.
21 Couch v Attorney-General [2010] NZSC 27, [2010] 3 NZLR 149 at [32].
22 See Wilkins v District Court at Auckland [1997] 10 PRNZ 395 at 402 where Elias J described judicial review as “the ultimate safeguard of the law.”
find that the judgment of Courtney J makes it clear there were two causes of action before her: (a) predetermination; and (b) failure to take account of relevant considerations in s 133(6) and (7) before a s 133 report could be ordered. Courtney J’s judgment on the latter cause of action covers the same matter that is now in issue before me, and on which the New Zealand Law Society has obtained leave to intervene and be heard. Accordingly, I reject the suggestion from the New Zealand Law Society that this matter was not before Courtney J. In this regard, I observe that the appropriate occasion for the New Zealand Law Society to seek leave to intervene and be heard was when the matter was before Courtney J, that was when the legal question in issue could be looked at in its entirety.
[31] I acknowledge that Palmer J granted leave to the New Zealand Law Society to intervene and be heard on the more general question of “the appropriateness of seeking a child’s view as to whether a s 133 report is necessary and on the practical implications for the role and practice of lawyer for the child if that is required”.23 Further, Palmer J recorded in his judgment that the New Zealand Law Society did not intend to address the facts of the particular case. However, the conclusion I have reached on the first cause of action precludes me from considering whether it is appropriate for children’s views to be obtained before a s 133 report is ordered. This outcome renders moot the broader question on which the New Zealand Law Society was to be heard. I cannot give what would now amount to no more than general declarations on general questions of law. Further, insofar as my views on this legal question might depart from those of Courtney J (which is not to say they do), it would be wrong for me to express them, and so by a side wind contradict her judgment. Absent appeal, Courtney J’s decision must stand in relation to the parties. If the New Zealand Law Society wants to purse advancing its views on the broader legal question on which it sought intervention it will need to find a more appropriate proceeding in which to do so.
[32] For completeness, I note that neither the grandmother nor the Family Court, both of whom were parties in the judicial review before Courtney J, challenged her
23 DN v Family Court at Auckland [2019] NZHC 2028 at [7].
judgment by appeal. This was the remedy for any of the parties who wanted to question that judgment.
[33] I acknowledge the Family Court was not an active participant in the judicial review before Courtney J. However, as occurred in Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries, it is possible for a decision- maker/party who has abided a decision on judicial review in the High Court, and who then wants to disclaim the view taken of its powers in the judgment under appeal, to actively participate in an appeal against that judgment to the Court of Appeal.24 The situation here is slightly more complicated than in Southern Ocean Trawlers because the Family Court is not usually an active participant in judicial review of its decisions.25 However, on the occasion where judicial review of a decision of the Family Court raises questions of general application as to how the Family Court exercises its powers and that Court sees a need to advance its concerns this can be done through the Attorney-General’s intervention.26 Accordingly, it may have been open to the Family Court to exercise the appeal right that was technically open to it as a party to the judicial review and then for the Attorney-General to apply to the Court of Appeal for leave to intervene and advance arguments on appeal against the need for either Dr S or the children’s views to be obtained before a s 133 report was ordered. It follows that there was an available remedy for either the grandmother or the Family Court had either of them wanted to challenge the judgment of Courtney J.
[34] Accordingly, I am satisfied that the decision of Judge Burns to order a s 133 report in the circumstances in which he did must be set aside. Whether any such further order should be made must be re-considered by the Family Court in accordance with the reasons set out herein and the factual and legal findings made by Courtney J.
[35] The view I have reached means it would be improper for me to proceed to hear and determine the remaining allegations in the first ground of review, because they traverse or touch on issues that Courtney J has already dealt with. Accordingly, I
24 See Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53 (CA) at 59.
25 See: New Zealand Engineering, Coachbuilding, Aircraft, Motor and Related Trades Industrial Union of Workers v Arbitration Court [1976] 2 NZLR 283 (CA) at 284; TV Works Ltd v Broadcasting Standards Authority HC Wellington CIV 2007-485-2438, 3 October 2008.
26 See Carroll v District Court at Nelson HC Nelson CIV 2009-442-509, 22 December 2009.
consider that it is not open to me to consider those issues afresh. For this reason, the remainder of the first cause of action is dismissed
Second and third causes of action
[36] At the hearing there was insufficient time to hear from all the parties on all the issues raised in the second and third causes of action. Accordingly, I indicated that I would issue an interim judgment on the question of whether Judge Burns was bound by the findings of Courtney J and whether his decision was in accordance with those findings. The conclusions I have reached thereon dispose of the first cause of action. As to the first and second causes of action, arguments relating to them were touched on during the hearing, but the shortage of available hearing time may mean the parties affected by those causes of action want to be heard further. If that is the case, they should confer with the case officer and a telephone conference is to be arranged at the convenience of counsel.
[37] Alternatively, if the parties do not want to be heard further on the second and third causes of action they should advise by memorandum whether they want me to proceed to deliver judgment on the second and third causes of action. Such memoranda are to be filed and served by 10 working days from delivery of this judgment.
[38] For the present, the third cause of action poses an obstacle to the implementation of relief relevant to the first cause of action. This is because the third cause of action seeks to have Judge de Jong’s minute removed from the Family Court’s file. The concern is that this minute contains prejudicial material that may wrongly influence any Family Court Judge who comes to reconsider whether a s 133 report is obtained. The recall application was filed in the Family Court on 5 November 2018. Judge Burns found in the decision now under review that the recall application did not need to be heard and determined before a decision was made on whether to order a s 133 report or not. This means that the minute of Judge de Jong remains on the Family Court file. The father and stepmother allege in the third cause of action that the decision not to determine the recall application prior to making a decision on whether to order a s 133 report or not was a breach of natural justice.
[39] The third cause of action has not been determined yet. If orders and directions relevant to the first cause of action are made and acted upon, the effect is likely to be that a new decision on whether to order a s 133 report will be made by a Family Court Judge before judgment is delivered on the third cause of action, and therefore at a time when Judge de Jong’s minute remains on the Family Court file. That event would deprive the father and stepmother of any effective relief on the third cause of action, should they succeed thereon. Fair process requires that they receive a decision on the third cause of action before any further steps are taken to obtain a s 133 report. Accordingly, I consider that the orders and directions that I propose to make relevant to the first cause of action should in part lie in the body of this Court until the third cause of action is resolved.
Result
[40] Pursuant to s 16 of the Judicial Review Procedure Act 2016 the decision and order of Judge Burns for the preparation of a s133 report is set aside and that order is to be implemented forthwith.
[41] Pursuant to s 17 of the Judicial Review Procedure Act 2016, and for the reasons set out herein, the question of whether a s 133 report is to be ordered is sent back to the Family Court for re-consideration in accordance with the reasoning of this judgment and the factual and legal findings in the judgment of Courtney J. This will require that before any order is made under s 133 the Family Court Judge who considers the matter must first:
(a)be provided with an opinion from Dr S on the advisability of obtaining a s 133 report on the children; and
(b)be provided by the lawyer for the children with a report, following interview of the children, that informs the Family Court Judge of the children’s views on whether a s 133 report on them should be obtained.
[42] The orders and directions made pursuant to s 17 of the Judicial Review Procedure Act are not to be implemented until the outcome of the third cause of action is finally resolved.
[43] The case officer is to arrange a telephone conference with the parties forthwith to discuss whether the second and third cause of action should proceed to a resumed hearing before me.
[44]The parties have leave to file memoranda on costs.
Duffy J
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