GS v Family Court at Manukau
[2022] NZHC 555
•24 March 2022
NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
PLEASE SEE judgments/
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-001077 [2022] NZHC 555
BETWEEN G S
Applicant
AND
THE FAMILY COURT AT MANUKAU
First Respondent
L M
Second Respondent
Hearing: 21 June 2021; Further material 6 July 2021; 15 July 2021, 12
August 2021, 16 August 2021, 12 October 2021
Appearances:
Applicant self-represented L Soljan as counsel assisting
Judgment:
24 March 2022
JUDGMENT OF WALKER J
[Anonymised version]
This judgment was delivered by me on 24 March 2022 at 4 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
G S v THE FAMILY COURT AT MANUKAU [2022] NZHC 555 [24 March 2022]
Introduction [1]
Overview of claims [7]
Preliminary observations [9]
Procedural history of this judicial review proceeding [13]
The hearing [46]
Statutory framework [50]
Other relevant legislative context – Health Act 1956 [71]
International obligations and NZBOR [74]
Procedural framework [79]
First Temporary Protection Order – 30 October 2018 [90]
Submissions [95]
Discussion [99]
Directions conference on 7 January 2019 [111]
Submissions [117]
Discussion [121]
March 2019 hearing and judgments issued on 19 June 2019 and August 2019
[130]
Submissions [148]
Discussion [155]
November 2019 directions conference [166]
Submissions [187]
Discussion [192]
Without notice enforcement application by Mr S – 30 December 2019 [201]
Directions conference - January 13 and 17, 2020 [206]
Submissions [208]
Discussion [216]
February 14 submissions-only hearing [222]
Submissions [234]
Discussion [239]
Further application by Ms M to vary the parenting order –hearing on 24 February —directions conference on 17 April and judgment of 30 April 2020
[250]
Decision of 30 April 2020 [276]
Submissions [287]
Discussion [292]
Postscript [306]
Alleged bias and predetermination [317]
Public interest claims [339]
Summary of outcome [340]
Costs [344]
Introduction
[1] G S and L M were in a de facto relationship from 2008 to their separation on 20 September 2018. They have one child together. For privacy purposes I will call him A. A was born on [REDACTED]. The breakdown in the couple’s relationship is acrimonious. Since 2018, the parties have been engaged in application after application in the Family Court. They have sought the court’s intervention on multiple issues. For the purposes of this judicial review application by Mr S, it is the Family Court’s decision making regulating the time that their son would be in the care of each of them which is relevant. In a sweeping challenge, Mr S seeks to review interim orders and directions made between 30 October 2018 to 30 April 2020.1
[2] Broadly, Mr S contends that decisions of the Family Court, individually and collectively, have led to unlawful periods of separation of father and son which have been detrimental to A’s well-being, and are contrary to the legislative regime, the New Zealand Bill of Rights Act 1990 (NZBOR) and international obligations. He advances arguments under the rubric of the usual judicial review challenges of illegality, unfairness and unreasonableness, predetermination and bias. The claims are a wholesale attack against alleged errors in decision making and the approach by judges in the Family Court jurisdiction.
[3] The first respondent, the Family Court at Manukau, abides the decision of the Court. The second respondent, Ms M, also abides. Consequently, counsel to assist was appointed to act as contradictor. I express the Court’s appreciation for Ms Soljan’s assistance.
[4] The decisions subject to challenge are not the operative decisions which I understand presently define the parenting regime between Mr S and Ms M, or at least did so as from 28 October 2020. A decision of the Family Court delivered on that date following an application by Ms M supplanted the interim orders which Mr S
1 Mr S also refers to a decision made by Judge Mahon dismissing an application to recuse himself on 10 July 2020 and a hearing on 4 August 2020 as part of his particulars of alleged bias and predetermination but does not directly challenge those matters.
challenges.2 In that decision, Judge A G Mahon described the case as “rare”, in view of the sheer number of interim hearings.3 The decision was the result of a substantive hearing held on 4 August 2020, shortly after Mr S filed this judicial review proceeding. The judgment was released on the eve of the substantive hearing of this judicial review and led to the first of two adjournments.
[5] The most recent statement of claim accepted by the Registry is that dated 9 March 2021.4 Leave to file was granted by Wylie J.5 Not uncommonly for a litigant in person, the document is diffuse. It comprises submission, evidence and pleading. Mr S extended the ambit of this review by adding challenges to directions and interim orders made in October 2018. He also referred to the judgment issued in October 2020 without particularising any grounds of challenge.6 More materially, in response to a question from me at the outset of the hearing, Mr S confirmed that the judgment in October 2020 addressed the earlier unsatisfactory outcomes by providing for unsupervised contact every second week, Friday after school to Monday mornings and 50/50 shared care in school holidays. On that basis the October 2020 decision is outside the ambit of this judicial review.
[6] There is a large volume of submission material also filed by Mr S. Judicial review proceedings are intended to be straightforward and without procedural complexity. The reality is very often different as with this case.
Overview of claims
[7]Mr S challenges the following:
(a)Failure to make an interim parenting order preserving Mr S’s contact with A at the time of a without notice application by Ms M on 30 October 2018;
(b)Directions made at a conference on 7 January 2019;
2 [LM] v [GS] [2020] NZFC 9398.
3 At [4].
4 Amended statements of claim were filed on 6 August 2020, 3 November 2020 and 9 March 2021.
5 [S] v Family Court at Manukau HC Auckland CIV-2020-404-001077, 10 March 2021.
6 Mr S did not expressly refer to this decision in his written submissions. Counsel assisting did not address the Court in respect of this judgment.
(c)Hearing before Judge Mahon on 6 March 2019;
(d)Judgment of Judge Mahon issued on 19 June 2019 and reasons on 14 August 2019.
(e)Directions conference and directions made on 15 November 2019;
(f)Outcome of without notice application to enforce interim parenting order dated 30 December 2019;
(g)Directions made following conferences on 13 and 17 January 2020;
(h)Submissions-only hearing on 14 February 2020 and interim parenting order;
(i)Submissions-only hearing on 24 February 2020 and subsequent directions; and
(j)Submissions-only hearing on 17 April 2020 and judgment dated 30 April 2020.
[8]Mr S seeks the following relief in his pleading:7
(a)Setting aside and quashing decisions and directions of the Court relating to parenting orders made after the order dated 8 August 2019.
(b)Ab-initio interim parenting orders commensurate with the findings of the Court after March 6, 2019 which are consistent with the Care of Children Act 2004 and United Nations Convention on the Rights of the Child.
(c)A declaration that the Family Court has acted unlawfully in:
(i)Making findings without evidence and/or contrary to evidence;
7 Amended Statement of Claim dated 9 March 2021 at [95]–[103].
(ii)Engaging with the applicant in a predetermined and hostile way, without evidential basis; and
(iii)Making rulings without notice or proper opportunity to respond.
(d)A declaration that prohibits the Family Court from making gagging orders that are inconsistent with the rights in s 16 of COCA;
(e)A declaration forbidding the Family Court to conflate child care matters with relationship property matters;
(f)A declaration forbidding the Family Court to rely on standard temporary protection order conditions to determine the parenting arrangements in the absence of serious family violence allegations;
(g)Given systemic delays in convening safety hearings within the mandated time frame, a declaration that in the absence of any significant harm to a child, it is incumbent on the Family Court to ensure the child and parent’s rights to spend reasonable time together are preserved by way of immediate interim parenting orders to ensure continuity in the parent/child relationship that closely replicates the time they had together before living apart as best it can under new living arrangements, to prevent separation of the child and parent against their wills;
(h)An order recusing the Family Court judge so that another Judge determine the final parenting orders; and
(i)Determining a ‘track’ for fair and reasonable final parenting orders to ensure the child’s rights to both his mother and father to prevent any further psychological distress to the child.
Preliminary observations
[9] At the outset, it is important to note that this is a judicial review proceeding and not an appeal. The general principle that the High Court has jurisdiction to judicially review decisions of the Family Court is well established. A right of appeal does not preclude an application for judicial review in the absence of a privative clause but is a factor which may militate against the discretionary grant of relief. In this case, no such consideration is in play as the decisions challenged are interim or interlocutory decisions in respect of which no right of appeal exists.8 The purpose of limiting rights to appeal is to ensure that the whole process is completed in the Family Court — a specialist jurisdiction — before there is a right of appeal.9 This principle also relevantly informs this Court’s approach to judicial review of interim orders and directions made by the Family Court. It is well established that the judicial review jurisdiction is one to be exercised sparingly regarding Family Court matters.10
[10] This Court is not engaged in considering the merits of the decision. Nor does it substitute its own view for that of the decision-maker. The focus is on the decision- making process and whether a decision has been made in accordance with the law.11
[11] As a final preliminary matter, I record Mr S’s heartfelt view that the term “contact” in COCA has offensive connotations. He argues that it fails to convey the real significance of the relationship between a father and a young son. He substitutes the term “care-time”.
[12] The term “contact” is referred to in the legislation to contrast day-to-day care of a child. I acknowledge the sentiment expressed by Mr S but intend to refer to the language of the statute to aid understanding of this judgment and reasoning beyond the parties themselves.
Procedural history of this judicial review proceeding
[13]The protracted history to this judicial proceeding provides context.
8 For completeness I note that this is not the case in respect of dismissal of an application for recusal.
9 Malone v Family Court at Auckland [2014] NZHC 1290 at [28].
10 At [53].
11 CP Group v Auckland Council [2021] NZCA 587 at [83].
[14] Mr S filed his statement of claim on 7 July 2020 with a supporting affidavit. At that stage, Mr S confined his challenges to decisions made by the Family Court between 19 June 2019 and 30 April 2020.
[15] At the first case management conference on 30 July 2020, Mr S signalled that since filing the proceeding, the Family Court had made further decisions which he proposed to challenge. He also sought transcripts or recordings of hearings on 15 November 2019, 17 January 2020 and 14 February 2020. He indicated that he had recordings of the telephone hearings if the Family Court did not. Palmer J deferred that application until the claims were repleaded.12
[16] Mr S filed an amended statement of claim, dated in error on the cover page as 6 July 2020. The filing date in the High Court was 6 August 2020. Again, the first decision challenged was the decision on 19 June 2019. The last decision referred to in the chronological narrative was then a hearing on 4 August 2020.
[17] At the second case management conference, Mr S pressed for transcripts of hearings. Palmer J ordered the transcripts to be produced if recordings by the Family Court existed. He directed that they are only to be used for the purposes of this Court’s hearing and are not to be made public.13
[18] Palmer J requested the Solicitor-General to appoint counsel to assist by acting as contradictor under r 10.22 of the High Court Rules 2016. He allocated a one-day hearing on 29 October 2020 and directed a timetable for the filing of submissions and evidence.
[19] On 29 September 2020, Mr S filed an application for urgent interim relief and supporting evidence. This came before me as judicial review list judge on 1 October 2020. The urgency related to a school holiday period. Mr S sought an interim order reinstating an interim parenting order of 8 August 2019 (August Interim Parenting Order). The application was opposed by Ms M. I allocated a one-hour hearing the next day to ensure that the issue was not rendered moot by delay.14
12 [S] v Family Court at Manukau HC Auckland CIV-2020-404-001077, 30 July 2020.
13 [S] v Family Court at Manukau HC Auckland CIV-2020-404-001077, 13 August 2020.
14 [S] v Family Court at Manukau HC Auckland CIV-2020-404-001077, 1 October 2020.
[20] The application was heard by Jagose J. He delivered judgment that day declining interim relief.15 He held that the August Interim Parenting Order only had relevant application for specific September and October 2019 school holiday dates. Thus, for the balance of the current school holidays on which Mr S was focused, the 2019 orders offered Mr S no position to preserve. He stated:16
While Mr [S’s] interim application is brought to further [the child’s best interests], his substantive challenge to the Family Court’s subsequent interim parenting orders is he disagrees with them as affording him insufficient time with the child. I cannot on an interim basis effectively provide for the substantive relief he seeks.
[21] Mr S applied to recall the judgment of Jagose J. The application for recall was dismissed.17
[22] The matter came back before me as judicial review list Judge on 22 October 2020 to determine further directions to ensure that the substantive hearing could proceed on 29 October 2020.
[23] On 27 October 2020, Mr S applied for an adjournment. One of the stated grounds was that he had insufficient time as a lay litigant to prepare for the hearing. A further ground was that Mr S had either applied, or was to apply, under the Senior Courts Act 2016 for an order that the proceeding be transferred to the Court of Appeal. Counsel assisting consented to an adjournment given various outstanding timetabling issues. The fixture was vacated by Davison J on 28 October 2020.18
[24] On 26 November 2020, the matter was called once more to consider any outstanding issues bearing on its readiness for hearing. Woolford J directed that the issue of admissibility of Mr S’s recording of a telephone conference before the Family Court be determined at a pre-hearing on 10 February 2021.19 He re-allocated a substantive hearing on 12 March 2021.
15 [S] v Family Court at Manukau [2020] NZHC 2593.
16 At [8].
17 [S] v Family Court at Manukau [2020] NZHC 2648.
18 [S] v Family Court at Manukau HC Auckland CIV-2020-404-001077, 28 October 2020.
19 [S] v Family Court at Manukau HC Auckland CIV-2020-404-001077, 26 November 2020.
[25] At a case management conference on 17 December 2020, I directed that Mr S was to file any amended statement of claim no later than 28 January 2021.20 This followed his indication that he intended to amend his claims to include an appeal and parallel review relating to matters heard by Judge Southwick QC in July and August 2020.
[26] On 21 December 2020, I issued a minute responding to memoranda from the parties in which I deferred the matter of access to a transcript in respect of the final protection order hearing as it was not then part of the pleaded case of Mr S. I also said:21
A procedure of “rolling” judicial review by adding challenges to subsequent decisions is discouraged. This judicial review has a substantive hearing in the not too distant future. It should not be derailed by adding new judicial review challenges to further decisions which post-date the claims, otherwise the proceeding becomes unmanageable. Subsequent decisions are better dealt with by fresh proceedings. A decision can then be made as to whether consolidation is practicable and desirable.
[27] On 24 February 2021, Downs J issued a judgment determining that the recording taken by Mr S and associated transcript were inadmissible.22 Downs J held that the Family Court had not been required to record the conference on 24 February 2020 as it was not a hearing in a proceeding for which there is a right of appeal without leave. Even if a recording was required, this would not justify Mr S making one without permission. Consequently, admission of the recording or associated transcript would constitute an abuse of process and it was not admissible.
[28] On 3 March 2021, the proceeding came before Toogood J because of non- compliance with timetabling orders. He made directions by consent which included that:23
(a)Mr S was to provide a memorandum setting out the relief he will be seeking to add to his claims; and
20 [S] v Family Court at Manukau HC Auckland CIV-2020-404-001077, 17 December 2020.
21 [S] v Family Court at Manukau HC Auckland CIV-2020-404-001077, 21 December 2020 at [2].
22 S v Family Court at Manukau [2021] NZHC 259.
23 S v Family Court at Manukau HC Auckland CIV-2020-404-001077, 3 March 2021.
(b)Mr S was to file and serve his signalled application to file additional evidence and seeking leave to do so.
[29]Directions were also made timetabling the filing of submissions.
[30] On 10 March 2021, Wylie J made the following directions referencing Toogood J’s minute:24
[3] Mr [S] has not filed an application. Rather, he has filed a memorandum, where he purports to seek leave to file an affidavit which he says details events which occurred on or around 24 February 2020. He says that he believes that an affidavit he has filed is self-explanatory.
[4] There are difficulties. The memorandum is not an application and the affidavit is not sworn. Further, the affidavit purports to set out Mr [S’s] recollection of a telephone conference hearing convened by Judge Mahon. Mr [S] recorded the hearing on his cellphone. He has previously sought to have the recording and a transcript of it admitted into evidence. On 24 February 2021, Downs J held that the recording and the associated transcript were inadmissible.
[5] The proposed evidence which Mr [S] seeks to give by way of affidavit is an attempt to circumvent the decision of Downs J.
[6] Leave to adduce the proposed further evidence is declined.
[7] In addition, Mr [S] has attempted to file an amended statement of claim, notwithstanding that the matter is due to hearing [sic] on 12 March next. The Registry has not as yet accepted that document for filing.
[8] Ms Soljan, appearing as counsel assisting, does not oppose the amended statement of claim being filed, but only if the hearing is adjourned to give her time to address additional matters in it. She notes that the amended pleading complains about earlier matters that are not mentioned in the current pleading. She accepts that Mr [S] should be able to pursue his claims fully, and that if he has a claim relating to earlier matters, it is expedient to have that claim dealt with along with the balance of the claims made.
[9] Mr [S], for his part, says that he is ready to proceed on Friday, but advises that, if Ms Soljan requires time to prepare, he will agree to an adjournment.
…
[11] I have however considered the amended statement of claim. It seeks to expand the issues under review, by extending the period in respect of which review is sought. Notwithstanding Mr [S’s] breach of Court orders, I agree with Ms Soljan that Mr [S] should have the opportunity to ventilate all of his grievances, albeit that this will delay matters.
24 [S] v Family Court at Manukau HC Auckland CIV-2020-404-001077, 10 March 2021.
[12] Mr [S] is given leave to file the amended statement of claim. As a consequence it is necessary to vacate the hearing on Friday, and I so order.
[31]A new fixture date of 21 June 2021 was allocated.
[32] On 2 June 2021, Mr S filed a memorandum seeking orders directing that a copy of a s 133 psychologist’s report be made available as part of the record for the judicial review. He also sought copies of transcripts from a directions conference on 7 January 2019 in the Family Court and from a one-day hearing on 6 March 2019 in that court.
[33] The s 133 report in question was not yet available. Venning J dealt with the memorandum on the papers.25 In a minute dated 9 June 2021 he observed that the report could not have featured as part of any decision-making in the Family Court which Mr S seeks to challenge and cannot therefore be relevant to the current judicial review proceedings. He dismissed both informal applications, having accepted Ms Soljan’s submission that what transpired at the directions conference on 7 January 2019 will have been subsumed in subsequent decisions of the court and the Judge issued a reasons judgment on 14 August 2019 which dealt with the issues arising from the hearing on 6 March 2019.
[34] Mr S sought leave to appeal the decision of Venning J or a rehearing. Mr S argued that the Court denied him his fundamental right to justice by determining the informal applications on the papers. His application was dismissed by Venning J on 14 June 2021.26
[35] Mr S then applied for an adjournment of the 21 June hearing on two grounds. First, that he was awaiting a decision on an application for leave to appeal Venning J’s interlocutory decision of 9 June 2021.27 Secondly, on medical grounds. Moore J declined the adjournment.28 In passing, he noted that the claims and evidence that Mr S wished to place before the Court have evolved considerably throughout the passage of this litigation and that there must be some finality.
25 [S] v Family Court at Manukau HC Auckland CIV-2020-404-001077, 9 June 2021.
26 Minute of Venning J dated 14 June 2021.
27 The Court of Appeal declined leave to appeal on 15 November 2021: S v Family Court at Manukau
[2021] NZCA 601.
28 [S] v Family Court at Manukau HC Auckland CIV-2020-404-001077, 17 June 2021.
[36] The hearing proceeded before me on 21 June 2021. I pause to record that Mr S’s oral presentation did not suffer from any evident disadvantage. On the contrary, his presentation was structured despite a significant volume of material and a protracted history. He conveyed his sense of injustice articulately and fervently.
[37] At the conclusion of the hearing, because of time constraints which truncated the oral submissions, and because Mr S himself described the arguments advanced under NZBOR as ‘novel’, I made directions for the filing of supplementary written submissions from both counsel assisting and a reply by Mr S. That timetable was then extended at Mr S’s request, without opposition.
[38] I received further written submissions from Ms Soljan on 6 July 2021 and reply submissions from Mr S on 12 August 2021. That did not conclude matters.
[39] On 15 July 2021, Mr S filed a memorandum seeking to further amend his statement of claim to challenge a new direction of the Family Court on 14 July 2021. That decision related to restrictions imposed on the provision to Mr S of a copy of the s 133 report commissioned by the Family Court.
[40] On 10 August 2021, Mr S filed a further application and submissions for interim relief seeking an interim parenting order or an order directing the Family Court to make such an order, relying on the recently available s 133 report. This application was notwithstanding that the care proceedings were still on going in the Family Court.
[41] On 10 October 2021, Mr S filed a further application and submissions for interim relief focused on production of the s 133 report for both the substantive proceeding and in respect of his interim relief application. This duplicated his prior attempt to have the s 133 report adduced which Venning J had declined.
[42] Mr S commenced a new set of judicial proceedings in respect of the Family Court’s constraints on the availability of the s 133 report. In those proceedings, Mr S challenged decisions made by the Family Court on 13 July 2021, 16 July 2021 and 25 August 2021.
[43] I declined to permit further amendment of the statement of claim since a challenge to a new decision which postdates the hearing in respect of which judgment has been reserved would require reopening the hearing.29 In respect of Mr S’s application to adduce new evidence, namely the s 133 report, I held that it would not be proper to effectively allow Mr S to attack by a side wind the decision by Venning J to decline leave to produce this report. I further said:
The factor telling against a grant of leave in any event is that the report is not relevant to the substantive matters in this proceeding; that is, to the question of whether the decisions at issue in the pleaded case in this proceeding are unlawful.
(emphasis original)
[44] However, I observed that the authorities did not necessarily stand for the proposition that evidence brought into existence after the impugned decision was made is never relevant on judicial review if it conceivably bears on the exercise of the court’s remedial discretion. For example, such evidence could be used for the limited purpose of determining the utility of granting relief because a successfully challenged decision has ongoing effects. I was unable to conclusively determine at that stage whether or not the s 133 report might be relevant to any question of remedy should Mr S succeed on any of his pleaded causes of action. I therefore declined his application to produce the further evidence in support of his claims but reserved the position on the question of remedy in the event I intended to order relief. In that event, Mr S had leave to refresh his application for the purposes of the exercise of remedial discretion.
[45] In a decision delivered on 8 November 2021, Wylie J expressed reservations about the process followed by the Family Court Judge when he issued his directions constraining access to the s 133 report.30 Indicating that this would normally result in the impugned decision being set aside and sent back to the Family Court to reconsider, he relied on the Judge’s belated identification of the risks which had led to his directions and Mr S’s engagement with the Judge’s assessment. He went on to consider whether there was proper justification for the directions made by the Judge. He determined that there was ample material on which the Judge could properly
29 [S] v Family Court at Manukau HC Auckland CIV-2020-404-001077, 28 October 2021.
30 S v Family Court at Manukau [2021] NZHC 3002.
conclude that A or Ms M were at risk of psychological abuse if the report was provided directly to Mr S.
The hearing
[46] At the outset of the hearing, Mr S produced further written submissions. These were headed “Time line of hearing and errors of each”, “Judicial Review Oral subs” and “Novel arguments as to the NZBORA 1990”. Ms Soljan did not object. As these were described as a precis or synopsis of previous written submissions, I permitted him to file these.
[47] He also sought to produce further evidential material in an unsworn form. One document was described by him as a letter in an unrelated childcare dispute evidencing how parenting orders are used as leverage by parties to achieve relationship property ends. I declined to admit that material for three reasons. First, it is improper to produce material from unrelated family proceedings between other parties. Secondly, documentary evidence may not be produced informally without consent. Thirdly, what has occurred in a dispute between other parties is not relevant to the issues before this Court.
[48] I permitted Mr S to include in the common bundle an affidavit that he filed with the Family Court on 7 January 2019 which was referred to in a minute of Judge Partridge.
[49] I declined to accept media reports relating to state kidnapping of Aboriginal children and abuse in state care which are irrelevant to the issues before this Court.
Statutory framework
[50] I take the following outline of the statutory framework largely from Ms Soljan’s helpful submission.
[51] The Care of Children Act 2004 (COCA) is a code. Its purpose is to promote children’s welfare and best interests, and facilitate their development, by helping to
ensure that appropriate arrangements are in place for their guardianship and care; and to recognise certain rights of children.31
Section 4 is the cornerstone of COCA. It provides:
4 Child’s welfare and best interests to be paramount
(1)The welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration—
(a)in the administration and application of this Act, for example, in proceedings under this Act; and
(b)in any other proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child.
(2)Any person considering the welfare and best interests of a child in his or her particular circumstances—
(a)must take into account—
(i)the principle that decisions affecting the child should be made and implemented within a time frame that is appropriate to the child’s sense of time; and
the principles in section 5; and
(b)may take into account the conduct of the person who is seeking to have a role in the upbringing of the child to the extent that that conduct is relevant to the child’s welfare and best interests.
(3)It must not be presumed that the welfare and best interests of a child (of any age) require the child to be placed in the day-to-day care of a particular person because of that person’s gender.
(4)This section does not—
(a)limit section 6 or 83, or subpart 4 of Part 2; or
(b)prevent any person from taking into account other matters relevant to the child’s welfare and best interests.
[53]The principles in s 5 are:32
5 Principles relating to child’s welfare and best interests
The principles relating to a child’s welfare and best interests are that—
31 Care of Children Act 2004, s 3.
32 Section 5(a) was amended to refer to the Family Violence Act 2018 as from 1 July 2019. It formerly referred to the Domestic Violence Act 1995.
(a)a child’s safety must be protected and, in particular, a child must be protected from all forms of violence (as defined in sections 9(2), 10, and 11 of the Family Violence Act 2018) from all persons, including members of the child’s family, family group, whānau, hapū, and iwi:
(b)a child’s care, development, and upbringing should be primarily the responsibility of his or her parents and guardians:
(c)a child’s care, development, and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents, guardians, and any other person having a role in his or her care under a parenting or guardianship order:
(d)a child should have continuity in his or her care, development, and upbringing:
(e)a child should continue to have a relationship with both of his or her parents, and that a child’s relationship with his or her family group, whānau, hapū, or iwi should be preserved and strengthened:
(f)a child’s identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.
[54] Materially, a parent’s conduct may be considered only to the extent it is relevant to the child’s welfare and best interests.33
[55] The assessment is broad based. The Supreme Court in Kacem v Bashir has provided guidance as follows:34
(a)The nature of the enquiry in which the Court is engaged is case specific.
(b)The enquiry must focus on the particular circumstances of the individual case with no presumption of what the welfare and best interests of the child may require or the influence of any particular s 5 principle on that question.
(c)The section 5 principles are not exhaustive of the matters that may be relevant to the welfare and best interests of the children involved.
33 Section 4(2)(b).
34 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.
(d)The ultimate objective is to determine what outcome will best serve the welfare and best interests of the particular children in their particular circumstances.
(e)Having identified which of the s 5 principles are relevant, those principles must be considered along with other relevant matters. Some may have a greater or lesser significance. If principle (a) concerning a child’s safety, is engaged: 35
it is likely to have decisive weight, not because of any presumptive legal weighting, bur because of the crucial factual importance of protecting the safety of children when compared with the objectives at which the other principles are aimed.
[56] Parenting orders, including orders determining contact any person may have with a child, are made under s 48 of COCA.
[57] Section 49 of COCA empowers the Judge to make interim orders at any time before an application is finally determined. Any such interim order has effect until a specified date, event or is replaced by another interim order or final order. A Judge must not make an interim order unless satisfied that an interim order serves the welfare and best interests of the child better than a final order.36 They may be made where the court seeks to monitor or review contact arrangements, such as where contact is being reinstated in a staged pattern.37
[58] COCA specifies that generally both parents will have joint legal guardianship of their children.38 There is no requirement under the Act that the court should consider a child spending equal time or even substantial and significant time with both parents. The court does however have an obligation when making an order giving one parent a day-to-day care role to also consider “whether and how the order can and should” provide contact with the other parent.39
35 At [19].
36 Section 49(2).
37 See for example Bailey v Lyle [2016] NZFC 3764.
38 Section 17.
39 Section 52.
[59] The principle that children should have an ongoing relationship with both parents after separation is an important one. But the welfare and best interests of the child are the first and paramount consideration in any proceedings involving a child’s day-to-day care and contact.40 The term “best interests” is of wider import than ‘welfare’. The concept of best interests has been interpreted as adding something to the notion of the child’s welfare. The distinction drawn is that “welfare” covers the child’s immediate needs for nurture, whereas “best interests” covers their longer term developmental needs. The maintenance of their relationships with both parents and their wider family falls within the latter”.41
[60] A line of High Court authority including Fletcher v McMillan, Sime v Radshaw and K v K establish the principles to be applied when the court is determining interim care arrangements.42
[61] Mr S relies on Fletcher v McMillan.43 That case dealt with interim orders which change primary care arrangements in the context of the former legislative framework. The father had taken his child from the mother’s place where the child normally resided and applied for an interim custody order. The Family Court made an interim custody order in favour of the father. The mother appealed. Hammond J said:44
…the Court’s function on an interlocutory application is a limited one. It is to decide what is to be done pending a full investigation and hearing. Unsurprisingly, in this context appellate courts have seen the preservation of the status quo as being of real significance. Assuming that there has been a state of affairs with respect to the child which can properly be described as a status quo, or something like it, such should not be disturbed unless the welfare of that child, using that term in its largest sense as covering physical, mental or moral matters, is distinctly put at risk.
40 Section 4(1)(b).
41 Julia Tolmie, Vivienne Elizabeth and Nicole Garvey “Is 50:50 shared care a desirable norm following family separation? Raising questions about current Family Law Practices in New Zealand.” (2010) 24 NZULR 136 at 138, n 14.
42 Fletcher v McMillan [1996] 2 NZLR 491 (HC); Sime v Radshaw (2005) 23 FRNZ 912 (HC); and
K v K [2009] NZFLR 241 (HC).
43 Above n 42.
44 At 493.
[62] This decision has been described in later High Court decisions as reflecting a narrow approach. In my view, a distinguishing feature of it is that it was focused on the primary care status quo, not the relationship with the non-primary care parent.
[63] Interim parenting orders are designed to address volatility in a parental relationship. Those principles were set out by Keane J (formerly a Family Court judge) in K v K as follows:45
[36] Interim custody orders are most usually made where there is a state of sudden volatility. The parents may just have parted: their lives may be in complete flux; and so too those of their children. Or the parents may live apart, and may never have lived together, but a dispute may erupt as to in whose care a child should be. There may be active conflict, even violence. There may be intolerable neglect. The child can be a hostage to fortune.
[37] At short notice then, and often on slight facts, the Court may be asked to intervene; and all then that the Court can do by interim order, until the parents reach their own accord, or the Court is able to make a complete and considered review of what the child’s welfare requires, is to give the child a measure of stability. That usually means confiding the child to the child’s most familiar and reliable caregiver, and then provisionally.
…
[41] The Court’s discretion is wide. Its ability to make an interim custody order is as large as its ability to make a permanent order. As long as a child is under the age of 16, the Court may make such order, whether interim or
final, and on such conditions, “as it thinks fit” (ss 11, 24). But interim orders, like final orders, can and ought only to be made when that is called for to safeguard or promote the welfare of the child (s 23(1)). The Court, well aware of the practical constraints …must be conservative.
[42] That does not mean, however, that the Court should approach interim custody any more narrowly than final custody. The Court will naturally be most concerned to safeguard the child’s welfare, but there is no clear divide between what safeguards and what promotes a child’s welfare. The two are in no sense opposed. Even when interim custody is in issue they merge one into another.
[64]Keane J also considered the concept of status quo. He observed that: 46
A child whose secure primary care is disrupted suddenly can be at risk, even where there is no physical, sexual or psychological abuse, or a risk of it. The fact of disruption can be enough. Even well cared for children can be at risk when their parents are in a state of unceasing conflict.
45 Above n 42.
46 At [44].
[65]The Court in P v F also commented on the status quo concept:47
Limiting the circumstances in which a court could grant interim relief which altered the status quo to case where the child’s welfare is positively at risk could result in a step that would promote the child’s wellbeing not being taken.
[66] In Sime v Radshaw, the central issue was under what circumstances is it appropriate to make an interim custody order pending a substantive custody hearing when the order has the effect of altering existing primary care arrangements and there is no imminent or serious threat to the welfare of the children concerned.48
[67] After referring to the earlier cases, Australian and English authorities, Heath J said: 49
…I regard Hammond J’s reference to status quo and risk as being observations made in the context of the type of case with which he was dealing, rather than the type of circumstance arising in this case. In this case, for the reasons eloquently explained by Keane J in K v K, the Judge was entitled to make an interim order provided the welfare of the children justified such an order.
[68] In short, Heath J preferred Keane J’s articulation of the approach being whether an interim custody order is required to safeguard, and preferably promote, the welfare of the children on the basis that the making of an order simply cannot be postponed.
[69]These later decisions provide context to the principles set out in Fletcher.
[70]I distil the following principles in summary:
(a)The purpose of an interim order is to provide some certainty and security until the matter can be fully considered.
(b)Sections 4 and 5 of COCA apply without gloss, but with the acknowledgment that the court is considering the child’s welfare and best interests with an incomplete picture and pending determination of substantive issues.
47 P v F [2007] NZFLR 1093 (HC) at [10].
48 Above n 42.
49 At [52].
(c)The discretion to make an order, whilst seemingly very wide, must be exercised in a manner which is consistent with the purposes of the Act.
(d)The ultimate question is whether an interim order is required to safeguard, and preferably promote, the welfare of the children.
(e)It is only the practical circumstances in which an application for interim orders comes before the court that provides any additional fetter on the extent of the court's jurisdiction. The application is generally heard urgently. The inquiry is inevitably narrower than a full custodial hearing. Those circumstances inform the decision to be made by the Judge rather than place any jurisdictional fetter on it.
Other relevant legislative context – Health Act 1956
[71] The events subject to review include the period of March 2020. Orders made by the Director-General of Health under s 70 of the Health Act 1956 created additional relevant considerations.
[72] On 25 March 2020, the Director-General of Health issued an order under s 70(1)(m) of the Heath Act. This limited personal movement of all persons in New Zealand. An exemption was allowed for:
shared bubble arrangements by which a child could leave the residence of one joint caregiver for the purpose of visiting or staying at the residence of another joint caregiver if there was a shared bubble arrangement in place.
[73] A shared bubble arrangement was defined as an agreement by all the residents (other than children) of no more than two residences within the same or adjacent health districts to quarantine in accordance with the order as if they were one residence.
[74] On 3 April 2020, the Director-General of Health issued a second order under the Health Act. The second order provided the same exemptions for shared bubble arrangements.
International obligations and NZBOR
[75] Article 7 of the UN Convention on the Rights of the Child (UNCROC) stipulates that each child has “as far as possible” the right to know and to be cared for by his or her parents. Article 9.3 provides for the right of the child who is separated from one or both parents to maintain personal relations and direct contact with them on a regular basis, except if it is contrary to the child’s best interests. These articles do not embellish or add to the framework but support the COCA position.
[76] Notably, art 9.3 is expressed as a right of the child and not a right of the parent. I accept Ms Soljan’s submission that any rights of the parent are subject to the primacy of the welfare of the child. This is what COCA demands and UNCROC supports.
[77]I endorse the comments of Judge Inglis QC in Y v Z:50
A child’s welfare and interests therefore depend on the parent’s own responsibility and obligation to nurture and protect in the widest sense. The true emphasis in a disputed access case, such as the present case, will lie in the ability or willingness of the parent who wishes to have access to discharge that obligation appropriately. It is the child’s right to expect that the parental obligation will be discharged appropriately and in the welfare and interests, not of the parent, but of the child.
So it is here. The father’s ‘rights’ in regard to the children are to be seen in reality as the responsibility and duty to join in the nurturing of the children for their welfare and benefit. The importance for the children of having access to the father is to be measured by his willingness and ability to give his parental responsibilities practical expression so as to promote the children’s welfare.
[78] Mr S asserts reliance on multiple provisions of the NZBOR. He described his arguments as novel. I intend no disrespect when I describe his written submission as difficult to understand. As best I can, I apprehend that the themes are that a court order which is not consistent with the NZBOR is unlawful; that separation by court order of parent and child is a breach of fundamental human rights and that minimum standards guaranteed in the NZBOR are not respected by the Family Court dealing with without notice applications. As a result, temporary protection orders frequently operate as unjustified default parenting orders when COCA, interpreted consistently with the NZBOR, requires that:
50 Y v Z (1994) 12 FRNZ 192 (FC) at [196].
The rights of the child to see his parents trumps a single parental concern that can be described as largely subjective, and likely exaggerated.
[79] I pause to note that Mr S’s fifty-one-page reply submission on the NZBOR arguments opened new avenues of argument (not previously signalled). In particular, in respect of declarations of inconsistency relying on the line of authority in Taylor v Attorney-General51 and the lack of a right to automatic appeal in the Family Court without leave being a breach of the International Convention on Civil and Political Rights. It is not permissible to introduce new arguments by way of reply. I put those new arguments to one side.
Procedural framework
[80] All proceedings in the Family Court are brought under the Family Court Rules 2002 (FCR) unless an Act of Parliament says otherwise.52
[81] The FCR lay down the procedural framework for decisions. Part 5A contains special rules for certain proceedings under COCA.
[82] Rule 416H enables applications to be made without notice in certain circumstances including where:
[T]he delay caused by making the application on notice would or might entail serious injury or undue hardship or risk to the personal safety of the applicant or any child of the applicant’s family, or both…
[83] Rule 416J prescribes what happens with applications filed without notice. It allows the making of interim orders on a without notice application in which case the Court must direct that the application proceed to a hearing. It reads:
416J What happens with applications filed without notice
(1) As soon as practicable after an application without notice is accepted for filing, it must be referred to a Judge for consideration on the papers in Chambers.
(2) Following that consideration, the Judge may make whatever directions he or she thinks fit and must, in relation to each order sought, do 1 of the following:
51 Taylor v Attorney-General [2015] NZHC 1706.
52 Family Court Rules 2002, r 5(1).
(a) make an interim order, in which case he or she must—
(i) direct that the application proceed to a hearing in accordance with rule 416U; or
(ii) direct that the proceedings proceed as if the application was made on notice and be dealt with on the standard track (whether or not the Judge also makes a direction under section 46F of the Act that the parties to the proceedings attend FDR); or
(iii) direct, under section 46F of the Act, that the parties to the proceedings attend FDR:
(b) make a final order, but only if the application was made under rule 416H(c), (d) or (e):
(c) decline to make an order, in which case the Judge must,—
(i) if the issues in dispute are urgent, direct that the application proceed to a hearing in accordance with rule 416U; or
(ii) direct that the application be dealt with as if it had been made on notice and that the proceedings be dealt with on the standard track (whether or not the Judge also makes a direction under section 46F of the Act that the parties to the proceedings attend FDR); or
(iii) direct, under section 46F of the Act, that the parties to the proceedings attend FDR.
(3) Then a Registrar must, without delay,—
(a) make a copy of any order made available to the applicant; and
(b) arrange for service (under rule 101) of any order made on every person against whom it is made; and
(c) arrange for service of the application and other documents on the respondent, by doing the things required by rule 416I(1), (2), and (3) as if the application had been made on notice; and rule 416I(4) applies; and
(d) if the application has been directed to proceed to a hearing, do the things required by rule 416U.
[84] Rule 416P requires all proceedings to be dealt with on tracks. Rules 416S to 416V set out the rules related to each track — standard track, without notice track, complex case on standard track, and simple track. In this case, pursuant to r 416UA the judge classified the case as being a complex case. As a consequence, the judge was required to take over all subsequent steps in the proceedings and case management conference could be convened at any time.
[85] Rule 416U addresses the steps to be taken when proceedings are dealt with on the without notice track, including the requirement that if a Judge directs that the application proceed to a hearing, a directions conference must be convened before the hearing. Since June 2020, r 416U has been amended to grant the Judge a discretion whether to hold a directions conference in proceedings filed without notice under COCA, in cases of emergency.53 The amendments were designed to facilitate the continuation of Family Court business during the Covid-19 response.
[86] Rule 416Z deals with directions conferences and makes clear that the purpose of a directions conference is to progress the matter to a substantive hearing to enable determination of the issues between the parties. Where the proceeding is on the without notice track, the hearing is, where reasonably practicable, to take place within three weeks of the directions conference.
[87] Rule 416Z(4) imposes a mandatory requirement, where it appears that some or all of the issues in dispute can be determined by way of a submissions-only hearing, the Judge must direct that a submissions-only hearing be held.
[88] I now turn to consider each of the impugned decisions, provide some context to them and discuss the review grounds advanced. Those review grounds overlap to a considerable degree. Where a particular review ground does not add anything to the primary challenge, I do not separately canvass that ground.
[89] In adopting this approach, I do not overlook Mr S’s overarching complaint that the overall process in this particular case in the Family Court was arbitrary, unfair and unlawful. After analysing each of the decisions under review, I then turn to the events collectively to address Mr S’s complaint of bias and predetermination.
[90] I rely on the pleadings, evidence and submissions together to distil the gist of the challenges for the reasons outlined above. But it is important to record that the pleadings provide an important discipline to proceedings. They define the permitted
53 Family Court (Emergency) Amendment Rules 2020 inserting Rule 416U(5) that the requirement to hold a directions conference does not apply if there is an emergency.
scope and represent the outer limit of the claims. It is not permissible to add challenges to further decisions by way of submissions or evidence.
First Temporary Protection Order – 30 October 2018
[91] On 30 October 2018, Ms M made various without notice applications following the break-down of the couple’s relationship. She sought:
(a)a TPO under the Domestic Violence Act 1995 (DVA), an occupation order granting her exclusive right to occupy the parties’ home, and an ancillary furniture order; and
(b)a parenting order granting her day-to-day care of A (interim and final).
[92] In her supporting material filed with the without notice applications, Ms M stated:
I have always been the primary caregiver for [A]. In fact, I have only ever spent a few nights away from him. I currently do not work so that I can take care of him. …
Like any child, [A] loves his Dad. I therefore recognise that it is important for him to spend time with his father however, given the way [G] and my relationship has progressed recently, [A’s] safety needs to be assured.
Since being served with the police safety order, I suspect [G] may be staying with a friend who is currently serving home detention for child sex offending.
…
[G] has a brother and sister-in-law who I trust absolutely. I would be very happy for [G] to have contact supervised by his brother and sister-in-law who live at [redacted].
[93] The Court granted a TPO. The applications for occupation order and ancillary furniture orders were placed on notice. The application for interim parenting orders was directed to be served on Mr S.
[94] Judge I A McHardy’s reasons for declining an interim parenting order are set out in the template form used by the Family Court as follows:54
54 M v S FC Auckland FAM-2018-055-000169, 30 October 2018.
I decline to make an interim parenting order pursuant to FCR 416J(2)(c). The issues in dispute are urgent. The matter should be dealt with on the without notice track. There is no suggestion that the status quo is about to be changed unilaterally by the respondent and therefore the required threshold has not been reached to justify proceeding on a without notice basis. The applicant is free to make whatever arrangements she considers are necessary to protect the child at this time bearing in mind that a temporary protection order is now in place.
[95] In another section of his memorandum, he recorded that the child should be afforded an opportunity to express views to the court if they wish pursuant to s 6 of COCA and art 3.1 of UNCROC.
Submissions
[96] Having declined to make any parenting orders when determining the TPO, the default “no contact” provisions under s 96 of the DVA applied.55 Mr S argues that had the effect of extinguishing his parental rights in favour of autonomous parental rights ceded to Ms M because it was expressly left for Ms M to determine whatever arrangements she considered necessary to protect A. He argued that the Court’s failing “empowered Ms M to use child care time as a tool for extortion in the relationship property dispute”. This disruption of the status quo in respect of A’s care, abrogated A’s rights to time with his father and Mr S’s rights to time with his son.
[97] Mr S submits this failure to make an interim parenting order had no regard to the statutory framework in COCA, as informed by international conventions, the circumstances in which the TPO was granted, and the paramount consideration of the welfare and best interests of A.56 He submitted that s 52 of COCA required the making of an interim parenting order.
[98] Ms Soljan pointed out that the parenting order application was placed on notice with an abridged time for response from Mr S. The Judge made this direction on the basis that he was not satisfied that the necessarily high threshold for a without notice application had been met. She submits that there were remedies available to Mr S to address his contact with his son but did not pursue those. He could have applied for a
55 The Family Violence Act 2018 came into force on 1 July 2019.
56 Mr S also referred to the mandatory 42-day period under the Family Violence Act 2018 and contends this was breached.
parenting order himself under s 48 of Care of Children Act 2004. He could also have applied to vary or discharge the TPO under ss 46 (variation) and 47 (discharge) of the DVA. Had he elected either course, the Court would then have had the opportunity to consider whether the standard non-contact provisions associated with a TPO ought to apply in all the circumstances.
[99] I pause to note that Mr S’s rejoinder is that any application he made would not have resulted in earlier hearing time. There is, however, no cogent evidence one way or the other.
Discussion
[100] All protection orders under the DVA contain a standard condition against contact between the ‘protected person’ and the other party. Children qualify as “protected persons”.57 They are therefore within the ambit of the protection order by default. Thus, contact between the child and a respondent is automatically prohibited unless the contact is in accordance with a court order or written agreement dealing with custody or access, or is permitted by a special condition of the protection order, or is necessary for the purposes of attending a family group conference under the legislation.58
[101] Section 79A of the DVA provided the court with a discretion to direct a review of arrangements for contact when making a TPO. At the relevant time, it read:59
79A Review of contact arrangements
(1)When making a temporary protection order, the Family Court may direct the Registrar to convene a review before a Family Court Judge of the arrangements for contact between the respondent and a child of the applicant’s family.
On receiving a direction under subsection (1), the Registrar must—
(a)appoint a time and place for the holding of the review; and
(b)inform the applicant and respondent of the date, time, and place of the review, and invite them to attend.
57 Domestic Violence Act 1995, s 2.
58 Sections 19(2)(e)(ii), (iii) and (iv).
59 See now Family Violence Act 2018, s 152.
(3)Only the following persons may attend the review:
(a)the applicant:
(b)the respondent:
[318]Not without difficulty, I distil the following themes from Mr S’s submissions:
(a)Threats by the Judge for “grossly insufficient reason”. For example, a threat to cut all contact because of the contents of Mr S’s letter to Ms M;
(b)Error as to the consequence of the second TPO on unsupervised contact;
(c)An invitation to Ms M to apply to vary the interim parenting orders at a directions conference on 13 January 2020;
(d)Inappropriate challenge by the Judge;
(e)Perverse outcomes in decisions Interim parenting orders such as continuing to empower Ms M with the power of veto;
(f)Making adverse findings without sufficient evidential basis or without testing evidence including whether Mr S said to his son that he would not return from Italy;
(g)By-passing the mandated processes in the FCR to reduce preparation time on Mr S’s part;
(h)Comments by the Judge such as in the 19 February 2020 memorandum that “regardless of judicial directions, Mr S will do what he pleases”;
137 Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495 at [64].
(i)Unidentifiable, vague and incomprehensible warnings by the Judge about Mr S not accepting the outcome of any judicial process unless Mr S succeeds on his own terms;
(j)Punitive reduction in care/contact time in response to the adult conversation issue;
(k)The absence of reasons for dismissal of the application for recusal along with the speed of decision;
(l)Comments at the 15 November 2019 directions conference in Mr S’s absence;
(m)Making ultra vires ‘observations’ about occupation of the trust-owned home based on one party’s evidence leading to punitive reduction in contact;
(n)A challenge by the Judge at the 4 August 2020 hearing to Mr S’s evidence of an exchange with the parenting coach.
[319] Judicial impartiality is a fundamental principle of justice.138 It is a right affirmed by the NZBOR.139 The public’s confidence in the justice system and the judiciary depends on the system being seen as independent and impartial.140
[320] The relevant legal test for apparent bias and predetermination is whether a “fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.141 This question is approached in two stages — first, by identifying the fact or facts that it is said might lead the judge to decide the case other than on its factual or legal merits. Secondly, by testing whether there is a rational basis for such a conclusion. There has
138 AWG Group Ltd v Morrison [2006] EWCA Civ 6, [2006] 1 All ER 967 at [6].
139 Section 27.
140 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 1) [2009] NZSC 72, [2010] 1 NZLR 35 at [3] and [38].
141 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 1); and Muir v Commissioner of Inland Revenue, above n 137.
to be a clear connection between the matter and the feared deviation from the course of deciding the case on the merits.142
[321] The Supreme Court in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd discussed the Australian High Court decision of Ebner v Official Trustee in Bankruptcy. The Supreme Court noted that the fair-minded lay observer principle:143
… gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal… be independent and impartial. Unless the judicial system is seen as independent and impartial the public will not have confidence in it and the judiciary who serve in it.
… The question is one of possibility (“real and not remote”), not probability. The High Court of Australia also warned against any attempt to predict or inquire into the actual thought processes of the Judge. Two steps are required:
(a)first, the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and
(b)secondly, there must be “an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.
[322]The Supreme Court went on to state that:144
The fair-minded lay observer is presumed to be intelligent and to view matters objectively. He or she is neither unduly sensitive or suspicious nor complacent about what may influence the judge’s decision. He or she must be taken to be a non-lawyer but reasonably informed about the workings of our judicial system, as well as about the nature of the issues in the case and about the facts pertaining to the situation which is said to give rise to an appearance or apprehension of bias.
[323] While the test is one of possibility, it is for the person who asserts a situation giving rise to a reasonable apprehension of bias to establish that is the case.145
142 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 1), above n 140, at [4],
[81] and [93].
143 At [3]–[4], discussing Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337.
144 At [5] per Blanchard J, citing Johnson v Johnson [2000] HCA 48, (2000) 201 CLR 488 at [33] and Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] 1 WLR 2416 at [2].
145 At [94] per McGrath J.
[324]In G v N, Courtney J astutely observed:146
Consistency of judicial management is a tool that can benefit both parties. Self-evidently, however, cases that are sufficiently complex to warrant management by an assigned judge can be challenging for both the judge and the parties…In this kind of case it may be difficult for a judge to make decisions that are greeted positively by both parties. Sometimes it is necessary for a judge to speak plainly. Parties cannot expect to seek a judge’s recusal merely because the judge has spoken in plain terms and conveyed an unpalatable message.
[325] I have no doubt that the care issues between Mr S and Ms M in the Family Court were (and possibly remain) one such case. But, unlike the case of G v N, I am not satisfied that bias or predetermination is made out after an objective review of the course of events. I set out my reasons.
[326] First, in my assessment, underpinning Mr S’s complaint is his dissatisfaction with the outcome. In my assessment, no substantive decision was perverse or without a reasoned basis. In significant ways, the Judge found in Mr S’s favour, declining on multiple occasions to require supervised contact, which indicates that the Judge had an open mind. This even after the lawyer for the child submitted that the contact should revert to supervised contact.
[327] Secondly, criticism of Mr S’s conduct has been directly relevant to the welfare and best interests of A. Comments were not unnecessary or, to adopt the words of the Court of Appeal in Muir, not “oral condemnations that are unrelated to the furtherance of the cause to be decided or simply gratuitous”.147 It is necessary to give one example only.
[328] Mr S argues that actual palpable bias explains what he describes as the outcome of the 14 February 2020 submissions hearing.148
[329] Substantively, the Judge found in favour of Mr S at this hearing except in respect of admonishment of Ms M. He declined to vary the interim parenting order to require supervision, though lawyer for the child had recommended reverting to
146 G v N [2018] NZHC 2763 at [24].
147 Muir v Commissioner of Inland Revenue, above n 137, at [102].
148 Mr S does not limit the claim of bias to the outcome but includes the administration of the proceeding also. He seeks an order that the Judge recuse himself.
supervised contact. He referred to the “entrenched positions” of each parent leading to a “high conflict parenting dynamic”.149 He recorded that “Mr [S] is a competent and loving parent” but that he had concerns that Mr [S] will act impulsively in the future and have inappropriate discussions with [A] directly.150 The Judge noted in the same breath that he had similar concerns about Ms [M’s] own conversation with A about the reason why flatmates had left the family home. He described her explanation as an inappropriate way to explain to a seven year old why someone he knew had left the property. He added that Ms M “at least acknowledged what she said to [A]. I am concerned that Mr [S] doesn’t frankly acknowledge what he says to [A]”.151
[330] The Judge’s comments about the way forward and Mr S’s disinclination to accept such was based on the evidence of further text and email communications which Mr S had acknowledged were inappropriate and Mr S’s own remarks at the end of the hearing. The Judge said:152
I am very concerned that, notwithstanding attempts to find a reasonable, rational way forward, unless Mr [S] succeeds on his terms he will not accept that outcome. An example of this attitude showed in the conclusion of this hearing when Mr [S] effectively said to me that if he does not get the time he wants with [A] he will walk away from [A]. I pointed out to Mr [S] that this was a threat both to [A] and to the Court. I also pointed out to him that it was not the behaviour of an adult and insightful parent.
[331] This observation fairly reflected Mr S’s intemperate remarks at the end of hearing and the evidence in Ms M’s affidavit affirmed on 14 October 2019. They do not evidence bias but are expressions of legitimate concerns for A’s welfare, consistent with the statutory imperative of assessing the welfare and best interests of A. The adverse remarks were not generalised criticisms but particular with an identified basis. They were not unduly severe.
[332] After reviewing the transcript of that hearing and the judgment, I find nothing in the decision which could lead a fair-minded observer to reasonably apprehend that the Judge did not bring an impartial mind to the issues. There is balanced criticism of both parties. The references to Mr S’s conduct and communications around property
149 At [10].
150 At [14].
151 At [17].
152 At [12].
issues were not gratuitous nor irrelevant. They do not bear witness to an improper punitive motive. On the contrary, there is a direct relationship between those matters and A’s wellbeing and best interests. In addition, they form part of the context and circumstances and provide a backdrop to the dynamic between the parties. On any objective view, these matters must affect A. Section 4(2)(b) of COCA expressly empowers a Court to take into account the conduct of the person seeking to have a role in a child’s upbringing where relevant to a child’s wellbeing.
[333] Thirdly, while I have already found that proceeding with the 15 November 2019 directions conference in Mr S’s absence breached natural justice, the matters discussed at the conference were overtaken by the subsequent hearing.
[334] Fourthly, I observe that the Judge’s apparent failure to give reasons for declining to recuse himself in July 2020 may have been a reviewable error but has been overtaken by events in that a second application was also dismissed with reasons. It is of course well accepted that Judges ought to give reasons for their decision. As was crisply set out by Wylie J in Ross v Family Court at Auckland citing De Smith’s Judicial Review:153
The giving of reasons is a salutary discipline for those who have to decide anything that affects others. It encourages a careful examination of the issues, the elucidation and consideration of relevant considerations, the articulation and rejection of irrelevant considerations and consistency in decision making. A reasoned decision enables a person adversely affected to know whether he or she has a ground on which to challenge the decision. Reasons assist an appellate or reviewing Court to more effectively scrutinise the decision for error.
[335] I do not however accept that an absence of stated reasons indicates bias, just as judicial error is not indicative of bias. (Application by a Judge of the law as he or she understands it cannot evidence bias, even if mistaken.)
[336] Fifthly, on balance, I do not accept that the Judge threatened Mr S as he put it. The Judge gave warning in his 30 April 2020 judgment that continued engagement in the kind of discussions with A recorded in Mr S’s letter would mean that the court will have no choice but to require contact to be supervised “or that no face-to-face contact
153 Ross v Family Court at Auckland [2021] NZHC 3204 at [38] citing De Smith and others De Smith’s Judicial Review, (8th ed, Sweet & Maxwell, 2018) at 7-088.f
may be appropriate”. This is not of the same ilk as the judge’s utterances in G v N where the judge’s comment was compounded by a threat that any non-compliance would result in the party being imprisoned.
[337] Sixthly, the procedural irregularity by not holding a directions conference before a submissions hearing was of no moment in the overall sequence of events. It cannot sensibly be suggested that it was designed to disadvantage Mr S when he made no objection at the time.
[338] Seventhly, it is common for Judges to challenge evidence from a witness if he or she considers it inherently uncredible. Provided that it is done in appropriate language, it does not suggest bias or predetermination. Mr S has proved himself a robust litigant. I do not consider the exchange with the Judge during the hearing would have unsettled him in any significant way.
Public interest claims
[339] For completeness I record that Mr S sought to advance a number of broader public policy arguments advocating reform of Family Court processes. These are outside the scope of this proceeding. This proceeding is limited to review of the process of decision making in respect of specific pleaded decisions. The broader, reform motivated nature of those challenges is illustrated by the relief pleaded by Mr S.154 The declarations he seeks are not available to him in this judicial review proceeding, even had he made out the asserted errors. This proceeding is not an opportunity to reform the Family Court, notwithstanding Mr S’s impassioned submission that this Court do so.
Summary of outcome
[340] Mr S’s claims in respect of his review of directions, processes and orders between 18 October 2018 and 30 April 2020 fail save in the two respects below. They are accordingly dismissed.
154 At [8] above.
[341] I find that the directions conference in November 2019 breached principles of natural justice. I decline to order relief, in the exercise of my discretion, because of delay and because events have overtaken that conference.
[342] I find that, to the extent that the Judge’s observation as to the effect on contact of the second TPO had any legal effect, it was an error of law. It was overtaken by the correction issued by the Judge.
[343] I dismiss the allegation of bias and predetermination by the Family Court Judge. Those allegations are neither warranted nor justified.
Costs
[344] I have not been addressed on costs and whether an order is to be made under s 178(2)(a) of the Senior Courts Act 2016 and I reserve same. If agreement cannot be reached I direct:
(a)Any memorandum seeking costs and disbursements is to be filed served within 21 working days of the date of release of this judgment to the parties;
(b)Any memorandum in reply is to be filed and served within a further 10 working days;
(c)Memoranda are not to exceed 5 pages.
[345] I will then deal with the issue of costs and disbursements on the papers, unless I require assistance.
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Walker J
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