DN v Family Court at Auckland

[2019] NZHC 2028

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. NO INFORMATION IDENTIFYING THE ANONYMISED PARTIES IS TO BE PUBLISHED

FOR FURTHER INFORMATION, PLEASE SEE

https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1087

[2019] NZHC 2028

BETWEEN

DN

First Applicant

LN
Second Applicant

AND

FAMILY COURT AT AUCKLAND

First Respondent Cont’d: .../2

Teleconference:

16 August 2019

Appearances:

D A T Chambers QC and S G Coles for the applicants M J McKillop for the first respondent

V A Crawshaw QC for the second respondent K N Crooks for the third respondent

S P Jerebine, counsel assisting the Court
A C M Fisher QC and K E Swadling for the New Zealand Law Society

Judgment:

16 August 2019

JUDGMENT OF PALMER J

The judgment was delivered by me on 16 August 2019 at 4.00pm Pursuant to Rule 11.5 of the High Court Rules

……………………………… Registrar/Deputy Registrar

DN v FAMILY COURT AT AUCKLAND [2019] NZHC 2028 [16 August 2019]

Page 2

AND  SL

Second Respondent

KQ

Third Respondent

Counsel/Solicitors:

Lady Chambers QC, & S G Coles Barrister, Auckland V A Crawshaw QC, Auckland

A C M Fisher QC, and K E Swadling Barrister, Auckland S P Jerebine, Barrister, Auckland

Duncan Cotterill, Auckland Crown Law, Wellington Heimsath Alexander, Auckland Armstrong Barton, Whanganui

What happened?

[1]    The context for this case is a dispute in the Family Court over aspects of the parenting of vulnerable children. For that reason, the identities of the parties are suppressed.

First decision to commission a psychological report

[2]    In late 2017, a Family Court judge ordered a psychological report regarding the children under s 133 of the Care of Children Act 2004. The applicants challenged that decision by way of judicial review in the High Court.

[3]    On 4 July 2018, in AA v Family Court at Auckland, Courtney J upheld the challenge.1 Courtney J considered “the Judge had reached his decision before hearing from counsel and did not properly consider counsel’s submissions”.2 She also considered it difficult to see how the Court could have been satisfied that a psychological report was “essential for the proper disposition of the application”, as required by s 133(6)(a), without knowing what their paediatrician had to say about it.3 Nor, she said, had the views of the children been taken into account, a task the lawyer for the children could undertake.4 Courtney J remitted the matter to the Family Court for further consideration.

Second decision to commission a psychological report

[4]    In December 2018, the Family Court again commissioned a psychological report under s 133. I do not have access to this decision. According to the statement of claim, the Judge decided the children’s views did not need to be obtained or considered and the paediatrician’s views did not need to be obtained before that was decided. He decided the lawyer for the child had no obligations to consult the children on whether a psychologist report was necessary but the views of the lawyer for the child were relevant.

1      AA v Family Court at Auckland [2018] NZHC 1638, (2018) 31 FRNZ 729.

2 At [28].

3 At [32].

4 At [33].

The proceeding

[5]    In this proceeding, the applicants challenge, by way of judicial review, the second Family Court decision to commission a psychological report. The applicants claim the decision was made in error of law because it:

(a)failed to take into account relevant considerations in failing to obtain evidence from the paediatrician and the children’s views;

(b)relied on the report of the lawyer for the child, which contained hearsay and, because it was made without inquiring as to the views of the children, it was in direct conflict with the New Zealand Law Society’s Lawyer for the Child Best Practice Guidelines and was ultra vires; and

(c)breached the right to a fair hearing and gave the appearance of partiality, by failing to deal first with an application for recall of a previous, allegedly prejudicial, minute.

[6]    The first and third respondents are abiding the decisions of the Court. The lawyer for the child is the second respondent. A counsel assisting has been appointed as contradictor in relation to the third cause of action. The proceeding is set down for hearing on 4 December 2019.

Intervention application

[7]    The New Zealand Law Society applies to intervene in the proceeding to provide expert evidence and submissions. It intends to focus on 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. The expert evidence will concern the impact of consulting with children on these decisions. The Law Society does not intend to address the facts of this particular case.

Law regarding interveners

[8]    The High Court has inherent jurisdiction to grant leave to an interested party to intervene in a proceeding by providing evidence, written submissions and/or oral submissions on specified terms but has no right of appeal.

[9]    In 2014, in Capital and Merchant Finance Ltd v Perpetual Trust Ltd, Thomas J distilled the following principles from the case law:5

(a)An applicant must show that its legal rights against or liabilities in relation to the subject matter will be directly affected. Commercial, financial, or reputational interests in the outcome will only be sufficient in exceptional circumstances.

(b)If the intending intervener's presence before the Court will not improve the quality of information before the Court, that will count heavily against its addition to the proceedings.

(c)A relevant consideration is the extent to which the proposed intervener can rely on one of the parties to protect its rights and obligations.

(d)If either party would be prejudiced by the intervention, or if the intervention would create an impression of partiality, the application will not be granted.

(e)In cases where development of the law is likely, the application is more likely to be granted if the proposed intervener has special expertise to assist the Court on wider public policy issues.

(f)The underlying issue is whether it would be unjust to adjudicate on the matter in dispute without the intervener being heard. Several of the factors mentioned above tie into this issue.

(g)Where intervention is justified, the degree of participation granted to the intervener should be the minimum necessary to protect the intervener's interests.

[10]Later the same month, a full court of the High Court stated:6

The jurisdiction may be exercised when the Court is satisfied that intervention is likely to improve the quality of information before the Court on issues wider than those that the parties may wish to address. Intervention has been allowed where the party seeking leave has an interest in the outcome of the case that will be directly or indirectly affected or even where that party has a distinctly arguable case that they will be affected. In such cases, this Court has held it would be unjust to decide the issues in the absence of the party so affected, or potentially affected.

5      Capital + Merchant Finance Ltd (in rec and in liq) v Perpetual Trust Ltd [2014] NZHC 3205 at [41], [2015] NZAR 228 at [41].

6      Taylor v Key (No 1) [2014] NZHC 3306, [2015] NZAR 730 at [9] (footnotes omitted).

[11]   In summary, in deciding whether to grant leave to intervene, the Court weighs the likelihood the intervener will assist the Court against the risk of prejudice or unfairness to the parties. The decision is guided by the overall interests of justice.

Submissions

[12]   Ms Fisher QC, for the Law Society, submits the Law Society’s independent evidence and submissions will improve the quality of the information before the Court. She submits the issues are of general public importance regarding the role and practice of lawyer for the child in Care of Children Act proceedings. She refers to the Law Society’s guidelines. She submits it is inappropriate to rely on lawyer for the child to address the broad policy issues at stake. She submits the intervention will not delay the hearing, the Law Society has and will maintain the required confidentiality and the confidentiality issues raised by Ms Chambers are a distraction.

[13]   Ms Chambers QC, for the applicants, submits the Law Society cannot meet the legal criteria to justify intervention. She submits the dispute is a family matter and extremely sensitive to the parties involved and is not about lawyers’ rights. She submits the Law Society would not add anything useful to assist the Court but would only unnecessarily duplicate evidence and submissions in litigation already over- crowded by experienced legal counsel. She submits the issue is the failure of the Family Court to abide the original decision of the High Court, not about whether that original decision was correct. She submits, stripped of its heavily fact-specific context, the Law Society is left with only an arid “ivory tower” contribution, an impoverished reiteration of what counsel for the lawyer for the child will already be providing. She submits intervention would achieve nothing but unnecessary extra cost and delay. She submits it is relevant that the Law Society has been lobbied to intervene on the side of the respondents, breaching the confidentiality orders and creating the appearance of partiality. She submits granting the Law Society leave to intervene will encourage the applicants to encourage others to intervene.

[14]   Ms Crawshaw QC, for the second respondent lawyer for the child, supports the proposed intervention. She submits the proceeding is not essentially a private matter because the lawyer for the child is a respondent and it does touch on matters of general

public importance relating to the role and practice of lawyer for the child. She submits the quality of information before the court on the broader issues will be improved. She submits provision of the statement of claim to the Law Society did not breach the confidentiality orders.

[15]   Ms Crooks, for the third respondent, accepts the proceeding is a private family matter but does not consider the intervener will breach the privacy of the children or the parties. The third respondent does not object to the intervention.

Should the New Zealand Law Society intervene?

[16]   The applicants’ judicial review challenges a decision of the Family Court as relying on a report of lawyer for the child as ultra vires and as inconsistent with the Law Society’s best practice guidelines for lawyers for children. The meaning of those guidelines and the boundaries of the role of lawyer for the child will be issues. So will the extent of the legal ability of the lawyer for the child to issue reports, and the Family Court to make decisions, without inquiring as to the views of the children.

[17]   I consider the evidence and submissions offered by the Law Society are likely to assist the Court in considering these issues. The Law Society has expertise in this area, as demonstrated by its formulation of the guidelines, breach of which the applicants challenge. There may be some overlap with the submissions of the second respondent, but the Law Society seems likely to have the resources and motivation to provide a wider view of the policy issues than would be expected of a single lawyer for the child. The lawyer for the child confirms that.

[18]   I do not consider the way in which the Law Society’s application has arisen is of any great relevance to my decision. I accept the Law Society will put its own independent evidence and submissions about the issues and will abide by the confidentiality orders. The Law Society’s submissions may well coincide with the interests of the second respondent but that does not mean it is or appears partial. Most interveners will take a position on an issue which will inevitably coincide with the interests of one party or another. That should not deprive the Court of the benefit of useful evidence and submissions. If other parties seek to intervene, their applications will be treated on their own merits.

[19]   In my minute of 26 July 2019, I set a timetable that included provision for evidence and submissions by the Law Society if they were granted leave to intervene. So intervention will not delay the proceeding. Whether the Law Society will be able to make oral submissions will be entirely at the discretion of the presiding judge at the hearing. So intervention need not elongate the hearing. The only additional direct cost that I can discern is the cost of this application being opposed, which will lie where it falls.

Result

[20]   I grant leave to the New Zealand Law Society to intervene in this proceeding, to offer evidence and make written submissions regarding the appropriateness of seeking a child’s view as to whether a s 133 report is necessary and on the practical implications of the role and practice of lawyer for the child if that is required. That is on the basis of the timetable already set down and on the basis costs will not be awarded in favour of, or against, the New Zealand Law Society. The judge presiding at the hearing will decide whether, and to what extent, the New Zealand Law Society will be able to make oral submissions.

Palmer J