H v Family Court at Auckland
[2017] NZHC 23
•20 January 2017
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2016-404-794 [2017] NZHC 23
IN THE MATTER of an application under the Judicature
Amendment Act 1972 and s 27 New
Zealand Bill of Rights Act 1990, and Part
30 High Court RulesBETWEEN
H Plaintiff
AND
FAMILY COURT AT AUCKLAND First Defendant
P
Second Defendant
Hearing: 18 August 2016 Appearances:
S L Abdale for Plaintiff
No appearance for First Respondent M K Macnab for Second Respondent C A OʼDonnell counsel for children
Judgment:
20 January 2017
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 20 January 2017 at 10 a.m. pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
H v FAMILY COURT AT AUCKLAND [2017] NZHC 23 [20 January 2017]
[1] The Plaintiff, H, seeks judicial review of a decision by Judge M L Rogers in the Family Court at Auckland referring the matter before her to a Care and Protection Co-ordinator (“co-ordinator”) of the Department of Child, Youth and Family.
[2] The Judge made the referral pursuant to s 19 Children, Young Persons, and Their Families Act 1989 (“s 19” and “Act”).1 Section 19 permits a Court to refer a matter to a co-ordinator if it believes that any child or young person (and I shall refer to “child” from here on) is in need of care or protection for one of the reasons set out in s 14(1) of the Act. Various steps are then open to the co-ordinator, such as convening a family group conference, reporting to an enforcement agency or taking
such other action as appropriate. The co-ordinator is then to report to the Court.
[3] The essence of H’s submissions is that the parties were before the Court for the sole purpose of arguing an application by P, the Second Defendant, for day to day care of L (“P’s application”). H and P are the mother and father respectively of C and L, who were born in August 2001 and January 2012 respectively.
[4] Despite that, however, the Judge did not hear P’s application but instead “converted” the hearing into something altogether different, being whether the Judge ought to make a referral pursuant to s 19, as she ultimately did.
[5] Many of H’s submissions would have merit but for the fact that at the outset of the fixture the Judge informed the parties of how she thought best to proceed, asked for their views and none objected. In the circumstances of this case, I consider that H, who was represented by experienced counsel, was required to object to the Judge if she did not wish to proceed as the Judge suggested. H did not do so and it is too late to object after the event.
[6] The grounds on which H seeks review are that:
(a) the Judge made an error of law. H submits that the Judge did not have jurisdiction to make the order she did;
1 P v H FC Auckland FAM 2013-004-1335, 24 February 2016.
(b) the decision was unreasonable;
(c) the Judge made the order in breach of natural justice.
Background
[7] H and P were married in 2001 and separated in 2013. H has had the day-to- day care of both children since separation.
[8] In October 2014, and following a four-day hearing, Judge Burns made interim parenting orders directing the care and contact arrangements that were to apply as between each parent and the two children. As it turned out, C refused to comply with the Judge’s orders in so far as they provided for contact with P. Given that, in November 2014 Judge Burns suspended the orders that he had made as between P and C and, instead, referred the matter to a co-ordinator under s 19. The Judge asked the co-ordinator to appoint a senior social worker to ascertain whether any care and protection issues arose as regards C. The co-ordinator’s subsequent report to the Court was to the effect that he or she did not consider there were any such issues regarding C.
[9] In June 2015, Judge Burns discharged the interim contact orders that he had made as between P and C, so that C was to be in the day-to-day care of H, with no order for contact with P. For his part, by this time P had applied for greater contact with L. Judge Burns gave directions as to other matters, asking that a two-day hearing be allocated after those other matters had been completed.
[10] The matter came before Judge Fleming for directions on 7 December 2015. The Judge allocated a back-up fixture for P’s application for increased contact with L on 11 and 12 February 2016, and a firm fixture later in the year if the back-up did not proceed. As it turned out, the back-up fixture did proceed, although the parties were not told that it would until the day before. It is that fixture that is now in dispute. Judge Fleming also ordered that no party was to file or serve further evidence without leave of the Court.
[11] On 29 January 2016, P advised H, through counsel, that he now proposed to go further than seek increased contact with L, and that he would seek day-to-day care of L on the basis that he considered H’s household unsuitable for L. I accept Ms Abdale’s submission that this was a substantial change in H’s position. At the same time or shortly afterwards, Ms Abdale, counsel for H, learned that P proposed to rely on evidence from some of H’s neighbours in support of his application. Until then, Ms Abdale and H had proceeded on the basis that there would be three witnesses – P, H and the writer of the updated report.
[12] On 4 February 2016, counsel for P, Ms Macnab, made an application to the Court for leave to file the additional affidavits and, at the same time, Ms Abdale filed a memorandum seeking an urgent judicial telephone conference regarding the proposed evidence.
[13] On 5 February 2016, Judge Fleming gave P leave to file two of his intended affidavits, one from Mr N Durose and one from Ms C Baroutsos. The Judge declined leave in respect of a third, from Mr R Webber, largely on the basis that it was inadmissible.
[14] On 10 February 2016, the Court confirmed the back-up fixture would proceed the following day, and Ms Abdale filed and served her submissions and reply evidence.
Hearing
[15] To summarise, on arrival at Court on 11 February 2016, the parties, counsel, and lawyer for L, Ms O’Donnell, were expecting a two-day fixture in respect of P’s application, whether for day-to-day care of L or alternatively for increased contact with L. No-one was expecting orders as to C. Although she was lawyer for C, Ms O’Donnell had not briefed herself on matters relating to C, nor communicated with C.
[16] Matters did not proceed as expected. The Judge had a lengthy preliminary discussion with counsel in chambers, including Ms O’Donnell. The Judge said that: she understood the parties were there “primarily to talk about” L rather than C, but
that she did not consider two days would be sufficient to hear P’s application; the Judge had read the file and the recent evidence and considered that “care and protection” issues arose in respect of L, and that she was considering either a referral under s 19, alternatively making L a ward of Court; and that she thought the best way to proceed was to hear the evidence “discreetly” (no doubt “discretely”) and then determine whether there was reason to make a referral.
[17] The Judge gave counsel an opportunity to object to the course she proposed. None did. The Judge then proceeded to hear evidence over the next two days, including evidence from Mr Webber, whose affidavit Judge Fleming had excluded the previous week. That is another matter to which H objects.
Judgment
[18] In her judgment, the Judge recounted the protracted dispute between H and P as to the care of their children. The Judge summarised her preliminary discussion with counsel as follows:
[29] After discussion counsel agreed that the most appropriate course was to abandon the substantive hearing and instead determine if a s 19 referral should be made and on what grounds. I heard viva voce evidence from Mr Durose and Ms Baroutsos. I also allowed evidence from another neighbour, [Mr Webber], whose affidavit regarding recent events in the neighbourhood had been refused admission by Judge Fleming on account of hearsay. [H’s] affidavit in response squarely implicated Mr Webber in her claims of an orchestrated campaign against her and it was only fair to allow Mr Webber to respond. I also heard from [P] on the issue of whether or not he was engineering a “campaign”.
[19] The Judge then traversed the evidence in detail and went on to say:
[74] ... viewed in isolation some of [H’s] problematic behaviour could be seen as trivial. Many people can have difficult relationships with their neighbours without that giving rise to care and protection concerns. But one has to consider how longstanding and widespread those ‘neighbour issues’ have been, the confrontational manner in which [H] has conducted herself and the nature of the concerns, involving as they do a number of young people who have become embroiled in [H’s] interpersonal issues, who consume alcohol on her premises and who have, in at least two instances, been supplied with alcohol by [H] despite being underage. ... The Police have been called to attend three separate incidents at the home in the recent months.
[75] The fact that [H] is unusually involved, both socially and personally, with [C’s] peers would also not in isolation be of particular note. However, it is of concern when that juvenile support network causes conflict inside and in the environs of the home. [H] is well aware of the Court’s oft expressed concerns for the psychological and emotional well being of [L] and [C] and one would expect a responsible and insightful parent to endeavour to minimise their exposure to conflict.
[76] ... numerous people come and go from [H’s] home. There are a core group of young people some of whom live at the property and some of whom simply socialise there. In addition there are tenants, who seem to change frequently enough for there to be a marked lack of clarity, even on the evidence of [H] and her own witnesses, as to who has been renting the downstairs bedrooms and when. This hardly serves to provide a stable home environment for the two young children, very young in [L’s] case ...
...
[80] Both in submissions and in cross examination, counsel for [H] made much of the fact that the neighbours had not made complaints to Child, Youth and Family, the Police or Noise Control and argued this went to the credibility of their concerns as reported to the Court. I do not share that view. Having regard to the history of tensions between [H] and her neighbours (amongst others) and in the context of a very close living environment, I accept that the neighbours held genuine concerns about possible retaliation by [H] and/or her associates.
[81] Ms O’Donnell who is the lawyer for the children strongly supports a s 19 referral being made. She has serious concerns for her clients, particularly young [L] who is by virtue of his age more vulnerable than [C]. Ms O’Donnell ... is alarmed by the evidence that since December the Police have attended at the address three times in three weeks.
[82] Ms O’Donnell is understandably perturbed by the ‘heightened emotional environment’ in which [L] and [C] live, surrounded by people who hold extremely negative views of their father ...
...
[84] As regards [H’s] lack of insight, I note that a mere seven days after this hearing, in the course of which there was considerable focus on whether [H] was supportive of [L’s] relationship with his father, [H] applied without notice to vary contact (in effect cancelling a scheduled contact weekend) so that [L] could attend a Play Centre camp. Filing that application indicates to me a significant and concerning absence of insight on [H’s] part.
[85] I am going to make a s 19 referral to Child, Youth and Family in respect of both [C] and [L]. Although [P] has taken an understandable and pragmatic stance in not vigorously pursuing enforcement or variation of the current orders in respect of [C], I consider that both children are in need of care and protection pursuant to the grounds set in ss 14(1)(a),(b) and (h).
[86] I am satisfied pursuant to ss 14(1)(a) and (b) that the home environment gives rise to a significant risk of emotional harm for both
children and a lesser but nonetheless existent risk of physical harm given the violence that has occurred in and around the home.
[87] Pursuant to s 14(1)(h) I am satisfied that there is now a substantial history of serious dispute between these parents in the course of which [P] has become completely estranged from ... [C] … There is obvious risk, in light of [H’s] ongoing and palpable hostility towards [P], that [L] will eventually become ... estranged ...
[88] All of the statutory welfare principles emphasise the importance of children having ongoing and strong relationships with both parents. ... [L’s] emotional and mental well being will be seriously impaired if there is not a significant improvement in his parents’ relationship and in particular his mother’s attitude towards his father. ... While it may be too late to remedy the situation for [C] that does not alter that her situation also satisfies the criteria for care and protection concerns on this ground.
[20] H applied for review shortly thereafter. H seeks an order setting aside the
Judge’s decision.
Submissions
[21] The principal points that Ms Abdale pursued before me were as follows:
(a) in the circumstances that prevailed at the outset of the hearing the Judge did not have jurisdiction to restrict the hearing to, or to hear evidence on, the discrete issue of whether there were grounds for a s 19 referral;
(b)alternatively, the Judge pre-determined the orders she would make before hearing the evidence;
(c) alternatively, the Judge erred in several respects in her treatment of evidential matters;
(d)that some of the adverse comments the Judge made about H were/are simply wrong.
Jurisdiction
[22] Ms Abdale submitted that the matter set down before the Judge was P’s
application and the Judge should not have converted the fixture into a hearing
regarding a s 19 referral. The Court had only confirmed the back-up fixture the previous day, there had been a flurry of activity on the file in the previous week (which included Waitangi Day) and the submissions and evidence, and Ms O’Donnell’s report regarding L, were all directed to P’s application. Ms Abdale submitted that, if two days was insufficient to hear the application, then the appropriate course was for the Judge to adjourn the application to another date.
[23] As Ms Macnab submits, however, the Judge told counsel at the outset about how she thought it best to proceed. The Judge gave counsel an opportunity to object and none of them did. Ms Macnab submits that, if Ms Abdale objected, she was required to inform the Judge accordingly, and it is not open to her to complain now.
[24] I accept this submission. If Ms Abdale considered that the course proposed was not open to the Judge, or that H would be prejudiced by it, she was required to voice her objection then and there. In the absence of her doing so, it is too late now.
[25] Ms Abdale also submits that, the Judge having effectively adjourned P’s applications, she did not have jurisdiction to proceed as she did and hear evidence for the sole purpose of determining whether to make a s 19 referral. Ms Abdale accepts that a Judge may make a referral pursuant to s 19 in the course of hearing an application but submits that a Judge may not conduct a hearing for the sole purpose of ascertaining whether there are grounds for a referral.
[26] Ms Abdale was not able to point to any authority for this submission but she advised her research had not revealed any case where a s 19 referral had been made in isolation of other relief. Ms Abdale also referred to the lack of any provision in the Family Court Rules which provides for a hearing exclusively in respect of a possible s 19 referral. Ms Abdale submitted that the Rules do not contemplate a hearing for such a purpose.
[27] The critical issue is the statutory provision. Section 19(1) provides:
19Referral of care or protection cases to care and protection co- ordinator by other persons or by court
(1) Where—
(a) after inquiry, any body or organisation (including a government department or other agency of the Crown, or a local authority) concerned with the welfare of children and young persons; or
(b) in any proceedings, any court—
believes that any child or young person is in need of care or protection on 1 or more of the grounds specified in section 14(1) (other than on the ground specified in section 14(1)(ba)), that body, organisation, or court may refer the matter to a care and protection co-ordinator.
[28] Accordingly, an entity referred to in s 19(1)(a) may make a referral “after inquiry” or a Court may do so in “any proceedings”, providing there is a belief that one of the grounds referred to in s 14(1) exists, that provision being concerned with matters such as abuse; neglect; abandonment; estrangement and so on.
[29] “Proceedings” is not defined in the Act. Nor is it defined in other family law
enactments. However, r 19, Family Courts Rules 2002 provides:
19 How proceedings are commenced
For the purposes of these rules, proceedings are commenced when a person makes an application to a court for a particular order or declaration under a family law Act.
[30] On the basis of this provision, “proceedings” were on foot when the Judge made the referral. It is not clear from r 19 whether the first application in a case commences “proceedings” generally or whether fresh proceedings are commenced as each application is “made”. Even if only the latter, as I have said, P’s application had not been withdrawn and awaited determination at the time the Judge made the referral.
[31] I am not satisfied that anything turns on whether the Family Courts Rules contemplate a Judge proceeding as Judge Rogers did. The issue comes down to whether the statute confers jurisdiction. On the face of the provision, and on the arguments before me (which were not extensive or detailed), I find that the Judge did have jurisdiction.
Pre-determination
[32] Ms Abdale also submitted that the Judge had pre-determined that she would refer the matter under s 19. This submission arises from statements the Judge made in her discussion with counsel at the commencement of the hearing. The relevant statements are as follows:
(a) the Judge “wished to give an indication of where [her] thinking is
with matters and then counsel can address me”;
(b)on reading the file it “immediately occurred to [her] that [L] must be a child in need of care and protection pursuant to s 14(1)(h)”. Section 14(1)(h) is concerned with differences between parents, amongst others.
(c) the Judge knew previous s 19 referrals in respect of C had been unsuccessful;
(d)the Judge knew social welfare workers did not give priority to referrals under s 14(1)(h) because there were more pressing demands on their resources but in this case the level of “toxicity” between P and H was “remarkable”;
(e) any optimism generated by the updated psychologist’s report in November 2015 had been overtaken by the affidavits filed by P, and H’s response which was that P’s affidavits were a fabrication intended to “set [H] up”.
(f) if there were any validity to the concerns expressed by H’s neighbours then there were issues under s 14(1)(a) and (b) of the Act (in short, any form of abuse or neglect) and she would be required to make a referral under s 19. However, if the evidence were a fabrication as H said, then the Judge would have to consider whether there was sufficient reason to make a referral under s 14(1)(h).
[33] I accept Ms Abdale’s submission that the Judge’s view at the preliminary stage was that a referral under s 19 was highly likely if P’s witnesses proved credible. The fact that the Judge said this at the outset would not have surprised counsel. Ms Abdale herself had filed memoranda prior to the hearing stating that P’s affidavits raised care and protection issues. Likewise, Ms O’Donnell had filed a report the previous day, that is 10 February 2016, saying, amongst other things, that the “safety issues” raised by H’s neighbours needed to be considered “and the evidence tested”.
[34] However, the Judge also said that if the witnesses were not credible then a referral might not follow.
[35] The mere expression of preliminary views does not in itself constitute pre- determination. The important matter is that a Judge keeps an open mind. For instance, in delivering judgment for the Court in Devonport Borough Council v Local Government Commission, Cooke P said:2
As was recognised in CREEDNZ, even strong expressions of prior views do not disqualify persons on whom such a task is imposed. They may have provisional views and policies, but they must keep open minds in the sense that at the time or period of decision they must genuinely consider the issues, applying any prescribed criteria, and not merely go through the motions. In other words, as Mr Randerson accurately put it, they must remain amenable to argument. Fairness obviously requires as much.
…
As any Judge knows, the fact that new arguments do not persuade one to change views previously formed does not mean that one has approached the new arguments with a closed mind.
[36] In this case, the Judge gave comprehensive reasons for making the referral, those reasons going beyond what would have been apparent to the Judge on an initial reading of the affidavits. The Judge’s decision was informed by all of the evidence that she had heard.
[37] There is no merit in this ground and I dismiss it accordingly.
2 Devonport Borough Council v Local Government Commission [1989] 2 NZLR 203 (CA) at 207-
208.
Evidence
[38] The next submission made by Ms Abdale concerned events relating to Mr Webber. As mentioned, Judge Fleming declined P’s application for leave to file Mr Webber’s affidavit. Despite this, the Judge permitted Mr Webber to give evidence. Ms Abdale submits that the Judge should not have done so.
[39] As Ms Macnab submitted, however, Mr Webber was only called and permitted to give evidence because H had criticised him in her affidavit. In those circumstances it was proper to give Mr Webber an opportunity to respond to H’s criticisms. Mr Webber would not have been called but for H’s evidence.
[40] Ms Abdale is on stronger ground, however, on the following point. In her preliminary discussion with counsel, the Judge said:
THE COURT:
Yes and if I can be very clear with everyone, I want us to stay quite focused on basically – if I could use as a cut-off line – what’s gone on since November with Ms Swan’s – when we had Ms Swan’s report saying actually there are some rays of light here, faint but hopeful, to the implosion we’ve seen over the last four weeks.
[41] Ms Abdale submits, correctly, that despite this statement, the Judge took into account events that had occurred prior to November 2015.
[42] I have reviewed the judgment and excluded any reference to events prior to November 2015, in an attempt to ascertain whether the Judge would have been likely to reach the same decision had she confined herself to events post-November 2015.
[43] Having done so, I believe the Judge would still have made a referral. For instance, there had been a physical altercation between Mr Durose and an occupant of H’s home, post-November 2015. Also, the police had been called on occasions since November 2015, and relationships between H and occupants of her household, and her neighbours (all or many of whom were on the same right of way), were hostile. Accordingly, I am not persuaded that the Judge would have reached a different conclusion had she done as she said she would and confined herself to events post-November 2015.
[44] I record that it appears much time was taken up at the hearing, in evidence and submissions, with allegations of who was or was not at fault in the various incidents addressed in the evidence and/or the merits of H’s actions or behaviour on occasion. Such matters are, of course, relevant only to the extent they give rise to a ground for referral, that is a belief that a child is or children are in need of care or protection. Individual views as to fault or the merits of a person’s behaviour are otherwise irrelevant and should be treated as such.
C
[45] Ms Abdale also submits that no-one anticipated orders as regards C, that the Judge did not alert H to the possibility that C might be the subject of a referral, and such a referral was pointless in any event given C’s well known views.
[46] Before me, Ms O’Donnell supported this submission, and contended that the Judge should not have made a referral as regards C. That was not because the Judge did not have jurisdiction but because C’s un-cooperative behaviour as regards P made the order pointless. Also, Ms O’Donnell had not reported to the Court on C because she understood the hearing was to be confined to L.
[47] I cannot reconcile these submissions to me with statements made by the Judge in her decision. The Judge recorded that P supported a referral in respect of both children; Ms O’Donnell “strongly support[ed]” a s 19 referral being made;3 and that H’s stance was “equivocal”. The Judge recorded that Ms Abdale said H would “support an investigation” but had then submitted that a referral was unnecessary because H had had a “wake-up call”.
[48] I have considered whether I should vary the Judge’s order so as to restrict the referral to L but have decided I should not. The Judge was concerned for the well- being of both L and C. In those circumstances, she was entitled, if not obliged, to
make a referral, whether or not she thought C would co-operate.
3 At [81].
Factual findings
[49] Ms Abdale submitted that there are factual errors in the judgment, some of which are adverse and unfair to H.
[50] For instance, at [4] of her decision, the Judge said that H had been ordered to pay, but had not paid, costs in favour of P. In fact, arrangements had been made to meet these costs by the transfer of an interest in property that all concerned had accepted satisfied any costs issues. This is a mistake on the part of the Judge which would not have been made if she had put the matter to counsel. Nevertheless, the error does not affect the issues before me.
[51] I asked Ms Abdale to draw my attention to other significant factual errors but none of the others to which she referred me (such as a date of birth) were material.
Result
[52] I dismiss this application for judicial review. I make no order as to costs.
..................................................................
Peters J
Solicitors: Vicki Pomeroy Law, Auckland
Crown Law, Wellington
Counsel: S L Abdale, Auckland
M K Macnab, Auckland
C A O’Donnell, Auckland
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