Hanover, re
[2015] NZHC 1855
•6 August 2015
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 COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2007-404-7415 [2015] NZHC 1855
UNDER The Care of Children Act 2004 IN THE MATTER OF
Applications in relation to the children
Gillian and Tom Hanover
Hearing: 2-6, 9-13, and 18 March and 13 April 2015.
Further submissions received on 8 May 2015
Appearances:
S Heney for Mr and Mrs Saunders
G Webster for Ms Evans
G A Cole for Ms Alder
P E Main for Mr Wilton
L J Kearns for the children
G M Cameron, counsel to assist
A J Pollett for CEO of Child Youth and Family Service
Mr Hanover in personJudgment:
6 August 2015
RESERVED JUDGMENT OF ELLIS J
I direct that the delivery time of this judgment is
2.15 pm on the 6th day of August 2015.
Counsel/Solicitors:
G A Cole, Barrister, Auckland
P E Main, Barrister, Auckland
G Webster, The Law Lounge, TakapunaA J Pollett, Meredith Connell, Auckland
L J Kearns, Barrister, Auckland
G M Cameron, Barrister, AucklandS Heney, Fletcher Vautier Moore, Nelson
Copy to Mr Hanover
RE HANOVER [2015] NZHC 1855 [6 August 2015]
Table of Contents
Nomenclature .........................................................................................................[4] Early history of the Hanover litigation...................................................................[8] Courtney J’s 2009 judgment................................................................................. [11] Courtney J’s 2010 judgment.................................................................................[17] The Court of Appeal.............................................................................................[22] Priestley J’s 2011 judgment..................................................................................[24] Priestley J’s 2013 judgment .................................................................................[30] Mr York.................................................................................................................[34] Cultural contact and the “toolbox” .....................................................................[36] Ms Alder’s living situation and the tenancy dispute.............................................[41] Result....................................................................................................................[44] Restriction on future litigation .............................................................................[46] More recent developments ...................................................................................[49] Reporting by Ms Kearns.......................................................................................[61] Toolbox .................................................................................................................[63] The 2015 hearing..................................................................................................[64] The effect of the litigation on Gillian and Tom ..................................................... [70
Mr Hanover’s role in the proceedings ..................................................................[74] Ms Alder’s living arrangements and her relationship with Mr Hanover..............[79] Ms Palmer’s s 132 report .....................................................................................[79] Ms Alder’s evidence..............................................................................................[86] Mr Hanover’s evidence ........................................................................................[93] The denouement .................................................................................................[102] Application for “cultural contact” made by Mr Wilton ..................................... [117] Application that Mr Hanover and Ms Alder be prevented from making
further applications without leave .................................................................[126]
Ms Alder .............................................................................................................[148] Mr Hanover ........................................................................................................[167] Application by MSD for access to the Court file ...............................................[173] Recusal ...............................................................................................................[174] Discussion ..........................................................................................................[183] Result..................................................................................................................[192]
[1] In March this year I had before me competing applications for parenting orders under the Care of Children Act 2004 (the COCA) in relation to two children who have been wards of the Court almost since they were born.1 In the end, the principal applications were, for reasons that will become clear later, dealt with effectively by consent and so no substantive judgment was ultimately required. At the time of writing, the children are in the day-to-day care of their “foster” grandparents.2 But there remain outstanding:
(a) an application for “cultural contact” made by the children’s biological
grandfather;
(b)a number of applications made after the conclusion of the hearing, namely:
(i)an application by counsel for the children that the children’s biological parents be prevented from making further applications in this matter without leave of the Court, pursuant to COCA s 141;
(ii)applications for costs by the foster grandparents and by the Ministry of Social Development against the children’s biological parents;
(iii) an application by MSD for access to the Court file.
(c) Also requiring determination are related questions as to the orders that the Court should make under s 135A of the COCA in relation to the contributions required of the parties to the costs of counsel for the children and of the psychologist, Dr Blackwell. Particular issues in
that regard are whether:
1 They were initially wards of the Family Court (orders made by Judge Malosi on 22 December
2004 and by Judge Rogers on 16 March 2006) but later the High Court assumed guardianship.
2 I use the word “foster” for want of a better term. The children’s present caregivers are the biological parents of the woman who has had day to day care of the children for most of their lives.
(i)the foster grandparents should be excused from that requirement; and
(ii)orders can or should be made against the children’s biological and foster mothers, because they are legally aided, or against the children’s biological father, because he is an undischarged bankrupt.
[2] As well, after the substantive hearing had ended, but before the hearing on
13 April 2015 of the applications set out above,3 the children’s biological father made an application that I recuse myself from further dealing with the proceeding. Just prior to the 13 April hearing, I declined to recluse myself, with reasons to follow. It is therefore necessary to provide those reasons here.
[3] Because of the complexity of the background and the multiplicity of issues, this judgment has taken some time to complete. As I indicated at an earlier stage to counsel, it was my original intention to release a single “omnibus” judgment that dealt with all of them. But more recent events mean that certain of the issues have become more pressing. Accordingly this judgment deals with all matters other than the costs issues, as to which there will be a separate decision shortly.
Nomenclature
[4] As others have said, litigation has been swirling around the two children and their biological family for all their lives. There are numerous prior judgments relating both to them and to their four half-siblings. The anonymity required by s 139 of the COCA means that various ways of referring to the children and their family have, over time, been adopted. The historic use of the parties’ initials in various combinations has, from my perspective, proved to be confusing.
[5] Accordingly, in an attempt to achieve some consistency and coherence I
propose to refer to the main actors pseudonymously, using the names first created by
3 The application for cultural contact was also canvassed at the earlier, substantive, hearing.
Priestley J in his 2011 judgment.4 Thus:
(a) The two children are Gillian and Tom;
(b) Mr Hanover is the biological father of Gillian and Tom; (c) Ms Alder is the biological mother of Gillian and Tom;
(d) Mr Wilton is Mr Hanover's father and the biological grandfather of
Gillian and Tom;
(e) Ms Evans was, until recently, Gillian’s and Tom’s foster mother;
(f) Mr York is Ms Evans’ estranged husband and the father of her two younger (biological) children.
[6] Although Priestley J also referred to Ms Evans’ father as “Mr Evans”, both he and his wife have more recently moved from the wings to the centre stage in these proceedings. So rather than referring to them as Mr and Mrs “Evans” (with the resulting prospect of confusion between mother and daughter), I propose to refer to them as Mr and Mrs Saunders. Ms Evans’ more recent partner will be referred to as Mr Knight.
[7] Notwithstanding the adoption of the above pseudonyms, I record and direct that Orders sealed in terms of this Judgment should contain the proper names of the parties involved, including any aliases or alternative names they have acknowledged using.
Early history of the Hanover litigation
[8] The nature of some of the applications presently before the Court makes it necessary first to set out certain aspects of past litigation involving the Hanover
4 Re Hanover Family HC Auckland CIV-2007-404-7415, 18 August 2011. Also Re Hanover [2013] NZHC 614. The players had previously been referred to by various combinations of their initials but there was no real consistency in that respect.
family in some detail. It is not an understatement to describe the history of the proceedings as byzantine.
[9] The genesis, and earlier stages were summarised in 2011 by Priestley J as follows:5
[12] The origins of this unhappy dispute stretch back over a decade. Ms Alder gave birth to a female child in 2000. It is probable that Mr Hanover was the child's father but he was in any event prepared to accept paternity. Care and protection issues were raised, as a result of which CYFS became involved leading to the baby's removal in August 2000. The child was subsequently returned to Ms Alder's care in February 2002. A few months later the child died of pneumonia. The autopsy revealed injuries which led to a police investigation. Gillian was born in April 2004 but at that stage CYFS was unaware of her existence. Later that year Mr Hanover and Ms Alder were charged with failing to provide the necessities of life for the deceased baby. A place of safety warrant was obtained under the Children Young Persons and Their Families Act 1989. This warrant was grounded not only on matters which the police were investigating but also on allegations of violence made by an older Hanover child which were later retracted, possibly under the influence of family pressure. However, the place of safety warrant seems to have been executed in respect of Gillian who was uplifted by CYFS in December 2004. Nine days later she was returned to Ms Alder and Mr Hanover pursuant to the order of a Family Court Judge.
[13] The trial of the children's parents still lay ahead. Tom was born on
9 August 2005. Two and a half months later the criminal trial of the parents began. This led to their conviction and the imposition of a term of 2½ years
imprisonment on 25 November 2005. The Court of Appeal dismissed
appeals by Mr Hanover and Ms Alder in July 2006.
[14] Given the then age of Tom there was apparently contact between him and Ms Alder in the birthing unit of the prison. In late September 2006
Gillian and Tom were placed by CYFS with Ms Evans and her then partner a
Mr H. This placement was, for some inexplicable reason, made without the knowledge or sanction of the Family Court under whose guardianship the two children had been placed. This extraordinary oversight has rightly been subject to judicial criticism in two fora which I need not repeat here.
[emphasis added]
[10] Gillian and Tom were subsequently placed under the guardianship of the High Court. Issues relating to their welfare and interests, contact with Ms Alder, and their placement with Ms Evans, were examined comprehensively by Courtney J
(after a month-long hearing) in a reserved judgment dated 15 September 2009.6
5 Re Hanover, above n 4. The litigation background is, in fact, infinitely more vexed and
complicated than Priestley J’s lucid overview suggests.
6 H v H (No 1) HC Auckland CIV-2007-404-7415, 15 September 2009. Courtney J had issued earlier orders and judgments in relation to the family, on 11 September 2008, 24 October 2008,
19 March 2009 and 20 May 2009.
Courtney J’s 2009 judgment
[11] In the course of her 2009 judgment Courtney J made adverse credibility findings about Mr Hanover. She gave a number of examples of Mr Hanover’s conduct and evidence which she described as “evasive” and “disingenuous”. Of particular present relevance is her finding that his evidence about his relationship with Ms Alder was vague and misleading. She was also critical of his extensive use of pseudonyms and that he appeared to encourage Ms Alder to adopt the same practice.
[12] Her general conclusion in that respect was expressed at [56] of her judgment:7
… Mr [Hanover] was not a witness whose testimony I could rely on. That does not mean that I reject everything he said and I do accept that Mr [Hanover] genuinely loves his children. However, on important issues I would not rely on Mr [Hanover]’s word alone.
[13] As far as Ms Alder was concerned, however, Courtney J was more guarded. She said:
[58] Ms [Alder] presented as an intelligent, thoughtful woman and appeared confident and honest in giving her evidence. In all aspects of her evidence she was at pains to demonstrate that her actions had been motivated by the interests of her children. However, it was impossible not to compare her demeanour with some aspects of her conduct over the past nine years, particularly in her dealings with the Ministry. I accept that Ms [Alder] was genuinely fearful for K’s safety and that aspects of the Ministry’s conduct was unfair.8 But even allowing for that, her resistance to all aspects of Ministry involvement was puzzling. She failed to attend the first meeting arranged to discuss concerns over K. She would not provide any details about the father. She would not discuss registration of K’s birth openly. She would not accept the Ministry’s offer of contact fortnightly even when it must have been obvious that starting that process was more likely to produce increased contact than refusing any contact.
[59] Whether, and to what extent, Ms [Alder]’s conduct is the result of the Mr [Hanover]’s influence has been a strong thread throughout the case. Ms Gilbert’s evidence of meetings with Ms [Alder] being interrupted by phone calls apparently from Mr [Hanover] and of Mr [Hanover] waiting outside meetings (but never identifying himself as possibly being K’s father) had a ring of truth about it. Ms [Alder]’s extraordinary decision to change her name three times (the last two, at least, at the behest of Mr [Hanover]) is only explicable by Mr [Hanover]’s influence over her, similar to that
7 H v H (No 1), above n 6.
8 “K” is the child whose death led to charges being laid against Mr Hanover and Ms Alder.
experienced by Ms P. The contrast between this kind of behaviour and her behaviour prior to her marriage break-up has led me to conclude that, notwithstanding Ms [Alder]’s denial, she has been strongly influenced by Mr [Hanover].
[60] My overall conclusion is that Ms [Alder] is fundamentally honest and genuinely cares about her children. However, she has been influenced by Mr [Hanover] and the result is that she has acted in ways she would not have done before she met him.
[14] In terms of the applications that were before her, the Judge’s conclusions were that:
[143] Having carefully weighed all of the competing factors that I have discussed I have reached the conclusion that it is in the best interests of [Gillian] and [Tom] that they remain with [Ms Evans]. They should have ongoing contact with their biological family but that contact must be managed so as to ensure that the placement is not undermined. There should also be arrangements made to facilitate the children's exposure to their Ngati Porou heritage. I therefore make the following orders:
(a) The children will remain under the guardianship of the High Court. [Ms Evans's] application to be appointed an additional guardian is declined.
(b) The parenting order in [Ms Evans's] favour for the day-today care of
[Gillian] and [Tom] will remain in place.
…
[15] There was, additionally, to be supervised contact with the children for two hours each month with Mr Hanover and unsupervised contact for four hours each month with Ms Alder and Mr Wilton.
[16] Ms Alder appealed the judgment to the Court of Appeal but abandoned her appeal after she was denied legal aid.
Courtney J’s 2010 judgment
[17] Courtney J had envisaged a review in August 2010. It seems, however, that that did not occur because focus had, in the meantime, been diverted onto the position of Gillian and Tom’s four older half-siblings. Those children became the subject of further judgments of Courtney J, the Court of Appeal, and Priestley J.
[18] The first of these related to the four older Hanover children and was delivered by Courtney J on 9 July 2010. In the course of the hearing before her, in May and June of that year, a question had arisen about where those children had been living and, in particular, whether they were living with Mr Hanover. Courtney J described how the issue developed, as follows:9
[19] Under the 2006 parenting order the children were to live with their mother, Ms P, in Christchurch. Mr [Hanover] was permitted only supervised contact with the children. In late 2008 Ms P moved to Auckland with the children. Over the next few months social workers made unsuccessful attempts to verify where the children were living. One address provided by Ms P turned out to be commercial premises where no-one knew of the family. Eventually Ms P provided an address in Avondale where the children were seen by a social worker on one occasion and by Dr Blackwell, on another. However, enquiries by social workers around this time suggested that the children were not, in fact, living at that address. These included visits to the address early in the morning and late in the evening and enquiries with neighbours.
[20] During the first half of 2009 three of the children were enrolled in schools in South Auckland on the basis of a false in-zone address. In June the schools advised of their intention to terminate the enrolments because the children were not living in-zone. The oldest child was not attending school at all because she has special needs and Ms P had not been able to get funding for a teacher aide for her.
[21] At a hearing in July 2009 concerning the children's half-siblings, [Tom] and [Gillian], the Chief Executive raised concerns regarding the whereabouts and well-being of the children. Ms P was cross-examined at length about the children's living arrangements and steadfastly maintained that they were living with her in Avondale. Mr [Hanover] was cross- examined about his knowledge as to where the children were living and denied that they were living with him.
[22] The level of concern grew as the trial progressed and doubts began to form over Ms P's evidence. These concerns became serious as the end of the school holidays approached because Ms P had indicated that she intended to enrol the children in new (unspecified) schools. When Ms P refused to return to court for further cross-examination I made the interim orders referred to earlier. Initially the children were to live with Mr [Wilton] and Ms P at Mr [Wilton's] house south of Auckland. That arrangement later had to be varied when Ms P left the property and Ms [Alder] stepped in to provide respite assistance to Mr [Wilton].
[19] The Judge noted that the question of where the children were living was relevant to her assessment of whether there was risk to them in remaining within the
family and the willingness of the family to observe court orders. She then recorded
9 Re WAH [2011] NZFLR 60 (HC).
that she had heard conflicting evidence on the matter from Mr Hanover, Ms Alder and Mr Wilton on the one hand and from a witness named Ms Black on the other. She discounted Mr Hanover’s evidence entirely.10 As far as Ms Alder was concerned, she said:11
… Ms [Alder] had a history before her relationship with Mr [Hanover] as being honest, hard-working and reliable. However, under Mr [Hanover]'s influence she has acted in ways contrary to that history, a fact that she now admits. She also conceded that there were things she had not disclosed to the Court. I have reservations about Ms [Alder]'s reliability. …
[20] After considering the considerable body of external evidence that supported Ms Black’s account, Courtney J concluded that the children had (as Ms Black said) been living with Ms Alder and Mr Hanover (at Ms Black’s house). She described the significance of her finding in the following terms:
[43] My finding that the children were living in Ms Black's house for most of 2009 led, of course, to the inevitable conclusion that, at least between March and July 2009, Mr [Hanover] and Ms [Alder] had day-to-day care of the children contrary to the parenting order made by the Family Court. Not only did they knowingly breach that order but their evidence before me was untrue on this point. However, these facts did not necessarily preclude the family's proposal that Mr [Wilton] and Ms [Alder] assume permanent day-to-day care of the children. It is a trite observation that no parent is perfect. Those whose moral code is less than what society considers optimal should not, by that reason alone, be regarded as unfit to care for their children. This is made clear by s 4(3) which permits taking a parent's conduct into account only if it is relevant to the welfare and best interests of the child. The question in this case was whether the family's conduct has harmed the children and whether their future emotional and psychological safety would be best served by remaining with their family.
[44] Submissions were made to the effect that if the children were placed openly with Mr [Wilton] and Ms [Alder] then there would be no need for secrecy and the problems associated with having to lie would lift. That point did have some attraction. However, I concluded that the situation that was created last year, together with the features of this family that have existed for many years, have caused these children real damage that is likely to jeopardise their emotional development and future wellbeing.
[45] The inevitable consequence of the children living at Ms Black's house during 2009 was that they had to engage actively in the subterfuge by concealing from their schoolmates, teachers, social workers and the
10 At [29] she said:
… I say immediately that I put no weight on anything Mr [Hanover] said to me. I considered [Mr Hanover]'s credibility at length in my judgment in September 2009 and concluded then that he was not a witness I could rely on. Regrettably, nothing I have heard in this case has caused me to improve my assessment of Mr [Hanover]. I regard him as thoroughly unreliable and highly manipulative. …
11 At [30].
psychologist where they were living and with whom. Forcing children to lie about such fundamental aspects of their lives is very damaging and I am satisfied that the children have felt the stress of having to do this. Unfortunately, this is not the first time that the children have been prevailed upon by their family to keep secrets about basic aspects of their lives.
[46] There has been a consistent and disturbing theme in the dynamics of the family which Dr Blackwell has described as a “culture of secrecy”. An early example would include the children's aunt dying their hair so as to evade Ministry staff. A more recent example is the lies told to obtain enrolment at school. The children were prepared to describe to their teachers the house in which they supposedly lived, including sleeping arrangements, when the address was false and the true occupants of it knew nothing about the family.
[47] In order to understand why I reached the conclusion that I did it is necessary to consider the enormity of the lie and the burden it placed on the children during 2009. When the children moved to Ms Black's in 2009 house, they all knew that they were under the guardianship of the High Court and supposed to be living with Ms P. They knew that they were enrolled at school under an address they did not live at and had to pretend to be living at that address so that they could go to those schools. They did their best to play their parts; in a report to the Family Court in December 2008 social worker, Ms [Alder] by, reported on an interview with the children, including W's (obviously untrue) statement that they had slept at the address the night before.
…
[50] The effect of children taking on the burden of these lies cannot be underestimated. Later I discuss the effect on each individual child but at this stage I have some general observations to make. Requiring a child to engage in ongoing subterfuge desensitises a child to the distinction between truth and lie. Two of the children are particularly susceptible to this and their behaviour is suffering significantly as a result. Having to conceal basic aspects of their lives forces children into a defensive mode in which they cannot trust other adults in their lives such as their teachers. They must be careful of what they say. One of the children has made statements suggesting that she was fearful of “letting things slip”. This situation creates a chronic stress for the children which I find, based on Dr Blackwell's observations and observations by the children's teachers, that all the children are suffering from.
[21] At the conclusion of Courtney J’s judgment she ordered that the four older children were to remain under the guardianship of the Court, and that permanent homes were to be found for them outside their family.
The Court of Appeal
[22] Courtney J’s judgment was then, however, appealed to the Court of Appeal. The orders made by Courtney J were stayed pending the appeal and the children
remained in the care of Ms Alder and Mr Wilton. The appeal was successful, and the matter was remitted back to the High Court for rehearing on two “consequential” issues which, the Court held, Mr Hanover, Ms Alder and Mr Wilton had not had adequate opportunity to address before Courtney J.12 Those issues were:13
(a) Was the children’s involvement in the deception causing them such
harm that it would bring s 5(e) of COCA into play?14
(b) If so, was it necessary to address the s 5(e) concern by placing the children with caregivers outside the wider family?
[23] The Court of Appeal also said:15
For the avoidance of doubt, we make it clear that the hearing in the High Court will be strictly limited to those matters. In particular, the findings by the judge that the actual living arrangements were in breach of the earlier orders and that the children were involved in the deception are not to be relitigated. The judge’s findings on those issues, which we have upheld, are the starting point for the assessment of the consequential issues …
Priestley J’s 2011 judgment
[24] The reference back was heard by Priestley J. In his subsequent judgment he noted:16
[31] Ms Alder and Mr Hanover sit under the long shadow of the death of their child in 2002 which resulted in their imprisonment. All four children have been subjected to upheavals. The biological children of Ms Alder have been placed elsewhere, with only sporadic contact with their half siblings and natural mother. There is irrefutable evidence that the adult members of the Hanover family, to varying degrees, have chosen to flout court orders. A bizarre and indeed inexplicable history of manoeuvrings, manipulations, and deceptions emerges.
[25] Later in the judgment, his Honour referred to a conference that had taken place on 22 December 2010, which had been attended by all counsel and all the
parties, with the exception of Ms Alder. He said:
12 WAH v WTW [2010] NZCA 577, (2010) 28 FRNZ 443.
13 At [64].
14 Section 5(e) of COCA provides:
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, hāpu, or iwi should be preserved and strengthened.
15 At [92].
16 Re Hanover Family, above n 4.
[48] At that conference Mr Hanover verbally assured me that he was not living in any domestic relationship with Ms Alder, nor was he having any contact with the children. He also informed me he would obey all operative High Court orders.
[49] My minute stated:
[17] I have directed [Ms Alder’s] counsel to give similar advice to her client. Both [Mr Hanover] and [Ms Alder] need to be under no illusions that if deceptions are practised; if [Mr Hanover], regardless of the temptations, has unlawful contact with his children; if social workers, counsel, or the Court are misled I will regard this as a serious contempt of the arrangements put into place by this Court for the children. I would not hesitate to commit people who offend in a flagrant way like this to jail. I am sure both [Mr Hanover] and [Ms Alder] appreciate what I am saying and will ensure that a repetition of the disgraceful events which occurred in 2009/2010 are not repeated.
…
[52] It was clear that Dr Blackwell in her evidence and three of the counsel involved (Ms Kearns, Ms Ryan, and Mr Cameron) were sceptical as to whether these undertakings extracted by me (coupled with firm judicial warnings), would really make any difference so far as ongoing deceptions were concerned. The comment was made that the undertakings would merely ensure the parties exercised greater care not to be caught.
[26] In terms of the first of the two questions which had been posed by the Court of Appeal, Priestley J said:17
… the approach which I intend to adopt is … to assess whether there is evidence of the children being subjected to psychological violence or abuse which engages s 5(e).
[27] After setting out the passages from Courtney J’s judgment to which I have
already referred, he went on:
[79] I have no intention of revisiting Courtney J’s factual findings, and indeed the Court of Appeal has made it clear her findings, for the purposes of this remittal, are sacrosanct. I agree with Courtney J’s assessment that forcing the children into deceptions and subterfuges was stressful and damaging behaviour. The deceptions imposed by the adults inevitably ran the risk of emotional and psychological damage to the children. There can be little quarrel with the proposition that such adult behaviour is psychologically abusive.
[80] But an evaluation is still necessary. Courtney J’s conclusion, as she framed it at [44] (supra [78]) was that the situation in which the children had been living for some years had caused ―real damage, which damage was
17 At [77].
likely to jeopardise their emotional development and future well-being. There must be some evaluation, however, of the extent of the damage. Furthermore, given the unfortunate history of the Hanover family, the adult- imposed deceptions would not have been the only adverse factors impacting on the children’s well-being.
[28] After then reviewing a raft of updating psychological and other evidence, and taking into account the views of the children, Priestley J said
[171] Courtney J was undoubtedly correct to categorise the lies and deceptions to which these children have been exposed as damaging. Problematic, however, is the extent to which the children have been damaged. Even more problematic is whether the lies and deceptions have been causative of behavioural and psychological problems to the exclusion of other potentially causative factors. The disappearance of the children’s natural mother from their lives. Placement elsewhere in the South Island. School changes. Constant involvement in litigation. Exposure to adult conflict which must include the successive breakups of the relationships of Mr Hanover with both Ms Priest and Ms Alder. All these, individually and cumulatively, must have had adverse effects on the children’s emotional development. I am thus not confident that emotional and psychological damage inflicted on these children has been caused solely or even primarily by the cluster of legitimate concerns found by Courtney J.
[172] My conclusion, accepting as I do Courtney J’s findings about the family, is that although s 5(e) is potentially engaged, the psychological abuse involved is not at a level where the children’s safety is imperilled. I accept that there was, and still is, potential for the children to be damaged. But I do not consider that the children’s welfare and best interests, or indeed the need to avoid the ongoing risk of psychological damage from the adults’ disgraceful behaviour, justify placing the children elsewhere. Such a step would impose further delay and disruption on them. It runs the very real risk of undoing the discernible improvements which the last year has brought for Wade and Sian.
[29] It was on that basis that Priestley J made orders (inter alia) that Ms Alder was to be the caregiver of the three older girls and Mr Wilton was to be the caregiver of the older boy. Importantly, this did not involve any significant change in their care arrangements (because Courtney J’s contrary orders had been stayed) and were also consistent with the children’s wishes. It is unnecessary for present purposes to set out other aspects of the orders made here.
Priestley J’s 2013 judgment
[30] Priestley J also presided over an attenuated hearing concerning Gillian and
Tom between 2011 and 2013. By that time there had been significant changes to the
two younger children's living environment, which the Judge described in his judgment of 27 March 2013 as follows:18
[29] In December 2010 Ms Evans travelled, with the children, to a rural town in the Marlborough/Nelson region, from whence she originally came and where her parents lived. She deposes that she did not, at that stage, intend to stay there permanently. However, over the Christmas holiday period (she returned to Auckland) she considered it would be better for her to continue to live in the South Island town with the children. She had family support there, the environment was pleasant, and the rents were affordable. She therefore decided to move permanently to the South Island. Her problems were compounded by financial difficulties, sourced in having to pay for the children's upkeep out of her own pocket but being unable, at that stage, to obtain CYFS commitment to pay day care bills she had incurred. Furthermore, in the South Island, because of fire fighting skills she had acquired, Ms Evans was able to obtain employment.
[30] What Ms Evans failed to do was to notify CYFS, as this Court's agent, of her intentions or that she had relocated the children. Nor was any approval sought from this Court. Ms Evans accepts that this was a serious error on her part.
[31] Priestley J was required to deal with a number of applications that were largely consequential on Ms Evans’ actions, including:
(a) a retrospective application by Ms Evans for permission to relocate the children;
(b) an application by Ms Alder seeking the return of the children to
Auckland;
(c) an application by Ms Alder to vary past parenting orders to increase her contact with the children;
(d) an application by Ms Alder (if Ms Evans refused to return to
Auckland) for the children to be placed in her care;
(e) an application by Ms Evans to be appointed an additional guardian of the children;
18 Re Hanover [2013] NZHC 614. Priestley J had issued an interim judgment on 1 December
2011.
(f) an application by Mr Wilton (pending since 2008) for appropriate cultural contacts and arrangements.
[32] During the period over which the hearing took place, Priestley J: (a) rescinded the orders for contact with Ms Alder;
(b)on 14 August 2012 required undertakings to be given by Ms Evans and Mr Saunders that they would immediately inform Ms Kearns and MSD (via the social worker) of any assaults on Ms Evans or other risks to children.
[33] In the course of his 2013 judgment Priestley J addressed a number of matters that have since resurfaced in various ways, making it necessary to touch on each here, in turn.
Mr York
[34] At the time of the hearings and Priestley J’s 2013 judgment Ms Evans was married to Mr York and had had a young child with him. Mr York was thus a daily presence in Gillian and Tom’s lives. Issues had been raised at the hearing about whether Mr York might pose a threat to the children’s safety. Of this, Priestley J said:
[34] I record too that in July 2004 Mr York was convicted in the District Court in September 2004 of a charge of male assaults female. Mr York was fined $300. There was a further common assault conviction entered against him in June 2010 for which he was fined $400. Counsel legitimately raised the 2004 conviction as a matter of relevance and cross-examined Ms Evans on it. The circumstances surrounding the convictions have also been considered by the CYFS social worker Mr Dubieniec. There is no proper basis, given the antiquity of the convictions (Mr York was aged 23 at the time of the male assaults female conviction), that I can hold Ms Evans or the children are at risk from sharing a household with Mr York. Certainly there has been no evidence of any recent violence on Mr York’s part. Nor have there been any assaults against Ms Evans or the children. The $300 fine imposed suggests that the offending was at the bottom end of the scale.
[35] And later, he recorded:
[53] Dr Blackwell was subjected to cross-examination in both November
2011 and February 2013. Her observations and assessments, although not determinative, were helpful. In particular she confirmed that there was a
close and healthy attachment relationship between Ms Evans and the two
children. She had no concerns about the children’s safety living in the same household as Mr York and indeed saw Mr York’s influence on both the children and Ms Evans as positive. …19
Cultural contact and the “toolbox”
[36] Priestley J explained Mr Wilton’s position in the proceedings, as follows:20
… Since the children have left Auckland they have had no Ngati Porou contact. Mr Wilton for his part understandably believes the children’s Maori side cannot be nurtured by “random” contact with any Maori. Mr York is of Ngati Maniapoto descent. There is evidence that the placenta of each child is buried on the East Cape marae.
[37] Later in the judgment the Judge acknowledged, as Courtney J had, that ideally the children should be exposed to and made aware of their Ngati Porou roots. He noted that there were several means by which this might be achieved but that the workability of these was difficult to assess because Mr Wilton had declined to give evidence, largely because he had found his cross-examination before Courtney J offensive.
[38] His Honour concluded that:
[81] Any attempt to preserve, at this stage of their lives and development, Ngati Porou contact is fraught with difficulty. Because Mr Wilton has removed himself, for the time being, as a possible facilitator, there is no practical method of exposing the children to their Ngati Porou roots in any direct way. On this aspect there are a number of possible outcomes. Mr Wilton may change his stance. Mr York (as Ms Evans indicated in evidence) might well be willing to explain portions of the children’s whakapapa to them and tikanga Maori matters generally. Information from Mr Wilton or others about Ngati Porou matters might legitimately be placed in the “toolbox”, which concept is examined later. The children, as they grow older, may beat their own path to their family marae. They may well, as so many thousands of Maori do, have sporadic contact only. I am clear, however, that it would be wrong to construct some form of Ngati Porou contact merely for the sake of doing so, when any tangible benefits would be
19 At [98] the Judge noted that specific s 5(e) concerns had been raised by Mr Hanover because of Mr York’s history, “coupled with Ms Evans’ historic involvement in violent relationships, her untruthfulness about her relationships and her alleged concealing of domestic violence which had surrounded her for prolonged periods.”
20 At [45].
outweighed by unwanted intrusions into the children’s lives and
apprehension on their part.
[39] Priestley J then went on to explain the “toolbox” proposal as follows:
[84] Ms Pollett, for her part, advised the Court that the Chief Executive of CYFS was prepared to fund and administer a “toolbox” which would facilitate an exchange of information from the biological family to the children and information about the children to the biological family.
[85] Ms Alder and the biological family could send to the MSD at its office in the provincial city near to where the family live information, cards, photographs, and written or printed material. CYFS would vet and monitor the material (through its allocated social worker) for suitability. If considered inappropriate it would be returned. If considered appropriate it would be secured both in electronic and hard copy form. Ms Evans would then be notified that new material had been received and the children, for their part through Ms Evans, could access material either electronically or through the local CYFS office.
…
[86] On the reverse flow (information about the children to the biological family), school reports, individual school photographs, and significant health reports would be forwarded to the Ministry’s provincial office. It too would be secured both in hard copy and in electronic form and conveyed to the biological parents by mail and/or electronically.
[40] Mr Wilton’s stance in relation to the toolbox proposal was recorded at [89] of
the decision, where the Judge said:
… It was Mr Wilton’s position that whakapapa and Maori culture could only be learned by living it, by speaking te reo, and marae experiences. Mr Wilton’s concern was his grandchildren would suffer a loss of their identity which could well create problems for them in their teenage years if they remain separated from their turangawaewae. Mr Wilton was opposed to the toolbox idea which he saw as illogical because although you could take children to their marae you could not take the marae to children.
Ms Alder’s living situation and the tenancy dispute
[41] Priestley J described recent changes in Ms Alder’s living situation as
follows:21
… When Ms Alder’s living arrangements were last scrutinised by the Court (my August 2011 judgment), she and the three girls were living in a well- appointed house in the countryside south of the Bombay Hills. The property was apparently rented. Since April 2009 there have been numerous
21 At [47].
proceedings before the Tenancy Tribunal, the District Court, and the High Court during which Ms Alder and Mr Hanover have tried unsuccessfully to contest their eviction from this property.
[42] His Honour then went on (at [48]) to refer to the “tortuous procedural history” of both the eviction dispute and another dispute involving the Hanover family’s occupation of a rural property where Mr Wilton had been living for some years. He said:
… During the August 2012 and February 2013 hearings Ms Alder and the girls were living in the second property (having been finally evicted from the former home), with Mr Wilton living outside in a caravan. As best as I can understand the evidence, Ms Alder accepted with some reluctance that her departure from her current home was imminent and that she and the girls would probably have to move closer to Auckland and the school of the younger two girls.
[43] His Honour then referred to intensive cross-examination by Ms Kearns about the conduct of the tenancy litigation by Ms Alder and Mr Hanover, and noted that:
[50] The relevance of these episodes, as submitted by Ms Kearns, is threefold. First the continuity and future of Ms Alder’s living arrangements is problematic. Although one of the desired goals is to become the permanent caregiver of Gillian and Tom, exactly where she would live with the children and how she would be able to afford to keep a comfortable environment for the children are uncertain. This is in marked contrast to Ms Evans’ current position. Secondly Ms Alder’s responsibilities to the two girls, and particularly to her handicapped step-daughter, are time-consuming and constant. It is a potent issue relating to the children’s welfare whether assuming the care of additional children and helping them adjust to a new environment would overtax Ms Alder and her resources. Thirdly, the past five years demonstrate an alarming propensity to persist in litigation (Mr Hanover and Ms Alder represented themselves) against the odds, running cases which were predictably hopeless. Some counsel, particularly Ms Kearns, cautioned that this propensity pointed to the couple being prepared, if they so chose, to embroil Ms Evans, Gillian, and Tom in ongoing litigation.
Result
[44] In the end, Priestley J ordered (inter alia) that:
(a) the retrospective application by Ms Evans to relocate the children was approved and granted;
(b) the applications by Ms Alder for the children to be returned to
Auckland and for contact with them were dismissed;
(c) Mr Wilton’s application for cultural considerations and a marae visit
was dismissed;
(d)the application by Ms Evans to be appointed as a guardian was granted;
(e) the children were to remain under the guardianship of the High Court until 1 April 2016. The Chief Executive of CYFS was to remain appointed as the Court’s agent;
(f) the Chief Executive was, by 1 June 2013, to set up and operate the toolbox concept as described in the judgment, with initial responsibility for it to be assumed by the assigned social worker;
(g)the Chief Executive was to file a brief report with the Court and serve on the parties every 12 months commenting briefly on the children’s progress, development, any health issues, the operation of the toolbox concept, and any concerns;
(h)the undertakings provided by both Ms Evans and her father were to remain operative and were to be confirmed in writing by them.
[45] The specific reasons given for these orders can be summarised as follows:
(a) Ms Evans had been the primary caregiver of Gillian and Tom for most of their lives and clearly loved them. The children also love and are firmly attached to her. All the evidence pointed to the children being well nurtured and secure. There were no reasons to change the status quo;
(b) Mr York’s presence in the home did not alter that conclusion and there
was no basis for regarding him as a risk to the children;
(c) although Ms Evans’ unilateral decision to relocate was unwise, it was not contrary to the children’s welfare and interests as it placed them in an environment where Ms Evans had family support and was also able to obtain accommodation and employment;22
(d)returning the children to Auckland would serve no useful purpose and would be contrary to their welfare, interests, and wishes;
(e) the effluxion of time and the children’s current attitudes and views meant that their welfare and interests would not be promoted by putting them in the care of Ms Alder.
(f) while Ms Alder’s wish for meaningful contact was understandable, it would not promote the children’s welfare or be in their current interests. In this respect the Judge said:23
The children currently perceive Ms Alder as a threat. Their abiding concern is that she wants to remove them from Ms Evans’ care and become their permanent caregiver (as indeed by her application she does). Although I accept Dr Blackwell’s tentative evidence that total cessation of contact may run the risk of meaningful contact never being restored between the children and their biological mother, I nonetheless, as part of my evaluative exercise, consider that contact for the next few years would serve no helpful purpose, would destabilise the children, and would run the risk of encouraging Mr Hanover and/or Ms Alder constantly to seek more contact. Contact, given the unfortunate events of January and February 2012, would run the risk of further disagreements and further intervention by professionals, the lawyer for the child, and this Court.
(g)while the children’s culture and heritage should be preserved or encouraged, there was no mechanism (other than the toolbox) by which this could be achieved. Any attempts by the Court to create and endorse such a mechanism would likely be resisted by the
children;
22 Priestley J’s views were fortified by the strength of the relationship that already existed between
Gillian and Tom and their foster grandparents.
23 At [100](f).
(h)further litigation was not in the children’s interests and needed to be avoided or at the very least discouraged;
(i)the toolbox proposal had merit and was a non-threatening way of the two families sharing information with and about the children.
(j)the centrality and importance of Ms Evans’ position in the lives of Gillian and Tom more than justified her appointment as their guardian;
(k)Notwithstanding the Court of Appeal’s observation that this family’s litigation was best dealt with in the Family Court, the welfare and best interests of the two children will be safeguarded by the High Court continuing its guardianship role, which was also consistent with the wishes of the parties.
Restriction on future litigation
[46] Priestley J also recorded his view that there was force in a submission made by Ms Kearns that the Court should direct an embargo on any further proceedings for a period of three years. He noted that he had been referred to s 141 of the COCA which empowers the Court to order that vexatious parties must obtain the Court’s leave before making further applications under the Act. In that respect he said:24
Although it is tempting to call into aid the persistent litigation to which I have earlier referred relating to tenancy matters, I do not think in fairness it can be said that either Mr Wilton or Ms Alder have “persistently instituted vexatious proceedings” under this Act. However, future applications by them, particularly if they attempt to travel down the same track as current applications, could well be vexatious and trigger a s 141 order.
[47] And then:25
Finally, I see merit in the Court, speaking authoritatively, and appropriately communicating with the children to inform them that litigation involving them is at an end and that they will not be required to see their biological mother nor is there any risk of them being taken away from Ms Evans’ care. I consider such communication is best done by a suitably worded letter from
24 At [103].
25 At [104].
me which can be read to the children by Ms Kearns, dispatched to the children by mail to be reread to them by Ms Evans, and stored permanently in the toolbox. However, such a letter cannot be sent until such time as the time period within which Mr Hanover and Ms Alder can exercise their statutory right to appeal has expired. It is my hope, that although Ms Alder in particular will be disappointed by this judgment, she can see the sense in it and will, as an exercise in maturity and restraint, not appeal. I would expect similar forbearance from Mr Hanover.
[48] Notwithstanding that admonition an appeal was filed by Ms Alder. For various reasons it did not progress quickly. It was, on a charitable interpretation, eventually overtaken by subsequent events and the prospect of a hearing before me and, at that point abandoned.
More recent developments
[49] In the relatively short period of time that has elapsed between Priestley J’s judgment and the present there have been yet further significant developments in the home environment of the two youngest Hanover children.
[50] First, in June 2013 Mr York seriously assaulted Ms Evans while she was holding her young baby, in the presence of Gillian and Tom. This resulted in Gillian and Tom being taken to live temporarily with Ms Evans’ father and mother. Ms Evans’ obtained a protection order against Mr York and charges were laid. With the assistance of Women’s Refuge and the local Police a safety plan was devised and implemented and a “panic button” installed in her home. Ms Evans obtained parenting orders in relation to the new baby, with contact by Mr York to be
supervised.26
[51] In August 2013, while Mr York was on bail, it appears that he and Ms Evans embarked upon a restorative justice process during which Ms Evans entertained thoughts of a possible reconciliation. This culminated in the couple having a dinner together in early September 2013 followed by sexual activity that resulted in Ms Evans conceiving another child. Before she learned of her pregnancy, however, her relations with Mr York deteriorated and there was a further incident of violence
on 21 September 2013.
26 As soon as the Court became aware of these events a more intensive monitoring regime was put in place.
[52] Mr York was subsequently convicted in relation to the assaults and sentenced to five months community detention, which ended on 3 May 2014. He was then subject to a Supervision Order which prevented his return to the town where Ms Evans’ lived. Ms Evans gave birth to the second child he had fathered in June 2014. The Supervision Order expired in September 2014 and there was, accordingly, some possibility that he would return to live nearer Ms Evans, although his probation officer expressed confidence that he would not do so.
[53] In early October 2014 the assigned social worker, Ms Heine, called Ms Evans to schedule a visit in accordance with the monitoring arrangements then in place. Ms Evans advised her that Tom and Gillian were staying with her parents and that she was going on holiday with her baby and new partner, Mr Knight. She also advised that she intended to move from the town where she was living to another town approximately 100 kilometres away where she had already found a job, and that she had arranged for her parents to look after Gillian and Tom for the remainder of the year so they could remain at their current schools for that period. Ms Evans said that Tom would then move back with her, but Gillian would remain with her parents because they (Ms Evans and Gillian) had been having “difficulties”.
[54] During a subsequent visit by the social worker to the Saunders’ home, Gillian advised that she wanted to live with her grandparents and did not wish to return home, because Mr Knight was staying over a lot, which made her feel uncomfortable. She also said she did not want to change schools or leave her friends. Tom appeared open to the move and was expecting to return to live with Ms Evans. He reported that he liked Mr Knight (and in particular, his X Box).
[55] Mrs Saunders confirmed that her understanding of what was to happen accorded with Ms Evans’ earlier advice to Ms Heine. Ms Heine’s report records her concern at the haste with which Ms Evans’ decision appeared to have been made and about the assumption that Tom would be able to move with her without approval of the Court. Otherwise, however, she confirmed the views expressed in earlier reports made after visits both to Ms Evans’ home and to that of Mr and Mrs Saunders that Gillian and Tom were happy and remained loved and well supported by their mother
and grandparents and that they continued to flourish at school and in extra-curricular activities.
[56] This report, and the Court’s subsequent minute (which directed that neither of the children were to have contact with Mr Knight without leave) appear to have provoked Ms Evans into leaving Tom on a more permanent basis at her parents’ house.
[57] At the Court’s direction on 7 November 2014, Ms Evans swore an updating affidavit in which she set out her (then) position in relation to the ongoing care of Gillian and Tom. In it, she spoke of her ongoing fear about living near Mr York and that she had first thought about moving away in May that year. She said:
After having an initial discussion with the Social Worker about relocating … and discussing the same with my lawyer I decided to put my plans on hold until after the Appeal had been completed, and there was more certainty regarding the children’s care arrangements, with a view to relooking at the issue of relocating … next year.
[58] But she explained that after more recently seeing Mr York on a number of occasions in the street, her anxiety had increased. She said:
On top of my own concerns regarding this I had to deal with constant allegations made by [Gillian] and [Tom’s] biological family that I was continuing to have contact with [Mr York] and the constant monitoring by the Social Worker of every aspect of my life.
I found it very distressing to have Child Youth & Family interview me straight after I had given birth … to find out if I had had an contact … The last person I wanted to see at that time was [Mr York] and I had put in place all measures I could to ensure that [Mr York] could not contact me nor have any contact with the children.
The last eight years of being involved in these proceedings have had a major impact on my life, being constantly watched, controlled and having every aspect of my life critiqued has been hard to live with and I simply can’t do it anymore [sic].
…
While it was initially my intention to make an application to relocate the children … (with the children remaining in my parent’s care until the application could be determined) I am simply not able to cope with being involved in the legal proceedings anymore [sic]. While I love [Gillian] and [Tom] with all my heart and believe sincerely that their interests would be best served by living with me … I am not prepared to be subjected to
constant scrutiny by the Court and criticism from [Gillian] and [Tom]’s
biological family members anymore.
…
If the children remain in my parent’s day to day care it would be my intention to travel … as often as I can to spend time with [Gillian] and [Tom]. … I want to remain actively involved in their lives and believe that this can happen even if they remain in the care of my parents during the school week.
While I understand that my rights as a guardian are suspended while [Gillian] and [Tom] remain under the Guardianship of the High Court I would still like to remain a guardian. Although I am not their biological mother I have loved and cared for then as though I was and will continue to do so for the rest of my life. I know [Gillian] and [Tom] better than anyone else in this world and believe that my input in guardianship decisions ongoing is in their best interests and wellbeing.
[59] Ms Heine’s next report dated 13 November noted that Ms Evans’ stance had, since the date of her affidavit, softened somewhat. She said that she desperately missed Tom and Gillian and wished them to return to her care, but that she had not applied for a relocation order because it was too difficult to come to Auckland for a hearing. Concerns were also expressed in the report that Tom had spent a recent weekend with Ms Evans and Mr Knight in apparent breach of the Court’s direction. Ms Heine confirmed, however, that a Police check made in relation to Mr Knight
revealed he had no traffic, family violence or police record.27
[60] The children have remained in the care of Mr and Mrs Saunders since that time.
Reporting by Ms Kearns
[61] As well as increased monitoring by the social worker that was prompted by the events of 2013 and 2014, counsel for the children met with the children and provided reports to the Court during that period, on 13 July 2013, 19 November
2013, 16 December 2013, 11 February 2014, 31 July 2014 and 19 November 2014. I do not propose to set out the content of those reports here as the salient points were recorded by Dr Blackwell in passages from her January 2015 s 133 report, which I
quote later, below.
27 Ms Evans’ evidence before me was that her relationship with Mr Knight had, by that time, ended.
[62] The most relevant conclusion to be presently drawn from her reports is, however, that all parties would have been well aware during this period that the concern noted by Priestley J about the adverse impact that the prospect of further litigation would have on the children was well founded. The litigation and its attendant uncertainties (and in particular the possibility that the Court would remove them from the care of the Saunders) continued to be immensely distressing for them.
Toolbox
[63] The last updating matter that needs, at this point, to be recorded is that the “toolbox” directed by Priestley J was, indeed, established. In August 2014 the social worker reported that, since its inception, Ms Evans had regularly added items to it including school reports, photos and news clippings. She noted, however, that it had not been used at all by the children’s biological family. She made suggestions about the sort of material that could be contributed by Mr Wilton so that the children “could develop the beginnings of an understanding as to their whakapapa and Ngati Porou heritage, which can be built upon in the future as the children grow older”. Mr Wilton continued, however, to eschew any contribution and, instead, filed a renewed application for “cultural contact”.
The 2015 hearing
[64] The change in the care arrangements for Gillian and Tom occasioned by Ms Evans leaving the children with her parents caused Ms Alder again to apply for a parenting order giving her the day-to-day care of the children. The altered circumstances also meant that counsel were agreed that there was no impediment to Mr Wilton renewing his application for cultural contact.28
[65] A cross-application for parenting orders was made by Mr and Mrs Saunders. There were also other, ancillary applications, including an application made by
28 Had circumstances not changed s 139A of the COCA (as to which see further below) would have required Mr Wilton to apply for leave to make such an application.
Ms Alder to have Ms Evans removed as the children’s guardian, and an application by Ms Evans for contact.29
[66] The hearing was initially scheduled for December 2014 but the time required to prepare updating reports, particularly from Dr Blackwell, meant that that was not realistic. Ten days was allocated in early March 2015.
[67] Because of the way the hearing unfolded, and its rather unexpected denouement, it is not now necessary to go into detail about certain aspects of the evidence and, in particular, the evidence about the respective parenting abilities of Ms Alder, Ms Evans and the Saunders. It suffices to record that:
(a) Ms Alder is a good and loving parent to the three older children who remained in her care, each of whom was thriving;
(b)Ms Evans acknowledged the bad choices that she had made in the past and said she was receiving professional help, which she was finding useful. The past nine years of litigation, and the ongoing monitoring of her and her family by MSD has obviously taken its toll. I was, however, left in no doubt that she loves Gillian and Tom very much and wishes them to be returned to her at some point. By the unfortunate dint of history, however, there will remain a question mark about the extent to which she is capable of complying with Court orders when her personal circumstances overwhelm her.
(c) As far as Mrs Saunders is concerned, there can be little question that she, too, loves Tom and Gillian very much and treats them as she would her own grandchildren. The stress caused by her daughter’s recent actions was, however, plain to see and it was equally evident from both her evidence and that of her daughter, that there remains a
real rift between them that has yet to heal. And notwithstanding her
29 Although Ms Evans was appointed the children’s guardian in 2015 the continued guardianship of the Court meant that the ordinary rights attached to that status were in abeyance. Mr Hanover’s and Ms Alder’s guardianship rights are also in abeyance for the same reason.
love for Tom and Gillian my sense was that Mrs Saunders very much resented the court process in which she has (through no fault of hers) become embroiled and that she lays blame for this with the biological family and, to a lesser extent, her daughter. The defensiveness in some of her answers to questions and her apparent hostility to proposals for contact with Ms Alder and Mr Wilton was, I think, most likely a reflection of the upset that has been caused her by this litigation and the involvement of the State in the life of her family.
(d)Mr Saunders has an extremely close and loving bond with Gillian and Tom and has, undoubtedly, become the most important person in the children’s lives. He is the “rock” on which the family is founded and is also the potential bridge over the rift between his wife and daughter. I record (for posterity) that he is, in my view, a hugely competent, sensible and caring man; a conclusion that is reflected in the guardianship order that was ultimately made in his favour.
[68] There are, however, a number of other matters arising from the hearing that do need to be set out in more detail. They are:
(a) the effect of the ongoing litigation on Gillian and Tom; (b) Mr Hanover’s role in the proceeding;
(c) Ms Alder’s living arrangements and her relationship with Mr
Hanover;
(d) the denouement.
[69] I propose to address each in turn.30
30 The issue of cultural contact and the evidence relating to that is dealt with separately, later.
The effect of the litigation on Gillian and Tom
[70] In late 2014 I directed that Dr Blackwell was to provide an updating psychological report about Gillian and Tom under s 133 of the COCA. The terms of reference asked her to focus on their present relationship with the Saunders, their other significant relationships, the psychological advantages and disadvantages of the various care and contact options that were before the Court, and any therapeutic assistance which might be available to them were they to be returned to Ms Alder’s care. Dr Blackwell was also asked to assess what weight the Court could reasonably and properly place on the children’s own views about the matters before the Court.
[71] Before preparing her report, Dr Blackwell spent an entire day with the children and the Saunders at their home. In relation to Ms Kearns’ earlier visits, Dr Blackwell noted:31
[Gillian] was not happy to meet with Ms Kearns and was reportedly frequently tearful during the interview. [Gillian] was asked whether she wanted contact with Ms [Alder] she said “No”. She expressed strongly to Ms Kearns that she did not like social workers coming to see her at all and specifically not at school. She noted that [Gillian] seemed less robust than previously and quoted the school principal saying [Gillian] got a “haunted look” when anyone came to see her at school.
Ms Kearns also interviewed [Tom] in February 2014. She reported that he seemed more confident than previously noted but he said he did not like being interviewed by social workers, either at school or at home. Ms Kearns opined that there was no need for continued interview of the children by social workers and sought a direction that children not be interviewed by anyone including herself unless specifically directed to do so by the Court. Ms Kearns wrote “If at all possible I would like these children to be informed that that is the Court’s decision so that they can have some relief from their continued anxiety regarding their present placement.” In February 2014 the Court directed that the monitoring be reduced to monthly and that this was to occur informally in the children’s home.
In November 2014, [Gillian] told Ms Kearns that if she were forced to go on a plane to Auckland (in the context of seeing Ms [Alder]) she would “run away” and “jump out” [of the plane]. … At the time I spoke to [Gillian] about Ms [Alder] (at the end of the interview in early January 2015) she pulled herself into a foetal position and tears streamed down her face. As I have already noted, [Gillian] is not in any way an overly dramatic or histrionic child and I interpret her threats to Ms Kearns as indicating the extreme distress she feels at the thought of contact with Ms [Alder] and separation from those she loves and values …
31 Report under s 133 of the COCA dated 29 January 2015, at [71] and following.
In November 2014, when Ms Kearns asked [Tom] whether he wanted to see Ms [Alder] and his half-siblings, he was reported as looking alarmed and said “No”. He indicated that his feelings had not altered since his previous interview with Ms Kearns. He then changed the subject and indicated he wished the interview to end. When I asked [Tom] about contact with Ms [Alder], his hitherto happy demeanour immediately changed and he said “no”. He looked so unhappy that I was not prepared to discuss the matter further.
[72] Elsewhere in the report Dr Blackwell also refers to Ms Kearns’ account of
Gillian vomiting with anxiety before her (Ms Kearns’) visit in February 2014.
[73] As to the specific terms of reference, I set out Dr Blackwell’s conclusions in
full:
[94] [Gillian] and [Tom] have, since 2006, formed closed relationships with [Mr Saunders] and [Mrs Saunders], whom they have regarded as their grandparents. The strength of these relationships increased after the children moved to … in December 2010, and further increased as a result of increased dependency on the [Saunders] by the children and [Mrs Saunders] after the events of June 2013, and more recently since October 2004.
[95] For the children, the … community is a close and familiar one. This is particularly the case for [Gillian] who (age appropriately) has forged some good friendships with girls her own age. The children … have adapted to the semirural lifestyle with frequent stays and visits to the [Saunders’] farm over the last eight years.
[96] Both children identified the significant persons in their lives as [Ms Evans], [Mr Saunders] and [Mrs Saunders] as well as … (Ms [Evans’] infant children). [Gillian] also referred to school friends as significant.
[97] Despite the disruptions to their lives, especially since September
2014, both children expressed continued affection for Ms [Evans] and wanted to see her. They continue to regard her as their mother and regard
the infant children as their siblings. They continue to regard [Mr and
Mrs Saunders] as their grandparents.
[98] There are potential psychological advantages and disadvantages to the children for each of the options for care arrangements. However, historical and current data indicate that there would most likely be significant psychological distress and resultant acting out behaviour (at least on the part of [Gillian]) if the children were returned to the care of Ms [Alder]. The consequences for [Tom] are that while he may seem to adapt, he is likely to internalise his distress with resultant psychological sequelae including anxiety and depression. Such upheaval may impact negatively on the emotional, educational and social functioning of the children.
[99] Substantial therapeutic assistance would be required to effect the change of care arrangements and to maintain Ms [Alder’s] ability to manage
the children. Success of this cannot be assured, despite any best efforts on the part of Ms [Alder].
[100] The children are aged nine years and almost 11 years respectively. They have been consistent in their wishes about contact with Ms [Alder] at least since 2011. At the heart of their rejection appears to be a perception that Ms [Alder] wishes to take them away from those they love and consider to be their family. They have, in the past, been frightened by comments by the older children that have indicated that such a scenario is likely.
[101] The intrusion of professionals, however carefully they have trodden, has added to the anxiety felt by the children as to the security of their placement with Ms [Evans] and more recently with her parents. I did not detect that there were any undue and negative influences of Ms [Evans] or her parents on the children against Ms [Alder]. The information has consistently been that she is not frequently discussed.
[102] In the event that they remain in … it is the wishes of the children and in their best interests that they have frequent and regular contact with Ms [Evans]. I agreed with the social worker that “every effort needs to be made to preserve this family structure”32
[103] However, if the children are to be returned to Ms [Alder], then decisions about contact with Ms [Evans] and her parents should, in my opinion, be made in relation to the dynamics of the situation that emerges at that time.
[104] In my report of February 2013, I opined at that time that the most serious psychological risk to [Gillian] and [Tom] could be seen to emanate from the continued litigation (with associated intrusions by professionals), and continued fear and uncertainty about their future.
[105] Since then, the children have been exposed on one occasion to serious domestic violence against the person who has been their predominant source of attachment and security. They have been exposed to the psychological sequelae experienced by Ms [Evans] with an associated reduction in the quality of the parenting she has been able to afford them. They have been exposed to her poor decision making in relation to her forming a relationship with Mr [Knight]. Ms [Evans] is currently on medication and undergoing therapy in an attempt to redress this situation. The close relationship the children have had with their foster grandparents appears to have mitigated some of the negative effects of this situation.
[106] As has been discussed in the body of this report, there are also potential significant psychological risks for the children in the event they experience further loss by removal from those they currently love and have regarded as their family.
32 Report of Lynda Heine dated 13th November 2014 at page 4 (first recommendation).
Mr Hanover’s role in the proceedings
[74] Mr Hanover made no application to the Court but supported those made by Ms Alder. That is consistent with the stance he has taken in this matter since 2008. His position at the hearing was that he was prepared to give an undertaking that, in the event that Gillian and Tom were returned to Ms Alder’s care, he would forego any contact with those two children for the time being, until further order of the Court.
[75] As I understood it, Mr Hanover’s rationale for this proposed undertaking was that he wished to make the issues before the Court less complex. I accept that that was, at least potentially, the effect of his position because it meant that the Court did not have to consider the issue of his contact with the children. The status quo in that respect was that earlier orders permitting him (supervised) contact with Gillian and Tom had been revoked by Priestley J.
[76] But what the absence of an application for renewed contact by Mr Hanover also meant was that an order granting day-to-day care of the children to Ms Alder could only be made if the Court could be confident that Mr Hanover would comply with his undertaking and maintain his distance. That is a matter to which I shall shortly return.
[77] In any event, and regardless of the making of any formal applications, Mr Hanover had a clear and undeniable interest in the proceedings and I permitted him to appear, cross-examine witnesses and make submissions, which he did. Although he was adamant that he did not wish himself to give evidence, I also signalled before the hearing commenced that I would consider whether he should be
required to do so under s 129 of the COCA.33 Again, I shall return to that point shortly.
[78] I record that Mr Hanover is, in my view, certainly a “party” in terms of the COCA.34 As Gillian and Tom’s biological father it is inconceivable that he should not be regarded as such. And in fact, his “party” status was, after the hearing, underscored by the fact that Mr Hanover did make an application of his own, namely the application for recusal that is dealt with later below.
Ms Alder’s living arrangements and her relationship with Mr Hanover
Ms Palmer’s s 132 report
[79] In late November 2014 I had directed that the MSD was to arrange to have a report prepared by one of their senior social workers about Ms Alders’ current living arrangements and other matters going to her suitability and ability as a day to day caregiver of Gillian and Tom. There was no dispute that such a report was necessary in light of the application Ms Alder had made. Ms Elaine Palmer was the social
worker assigned this task.
33 Section 129 provides:
(1) In proceedings before it under this Act (other than criminal proceedings), a Court may, on its own initiative, call as a witness a person whose evidence may in its opinion assist the Court.
(2) The power given by subsection (1) includes power to call as a witness a party to the proceedings or a spouse or civil union partner of a party to the proceedings.
(3) A witness called by the Court under this section has the same privilege to refuse to answer any question as the witness would have if the witness had been called by a party to the proceedings.
[135] As this quotation also makes clear, it is not just the “institution” of proceedings that is the focus of the relevant inquiry but the way in which proceedings are progressed and conducted. Thus, the Court of Appeal went on to say:44
… We note the adoption by the High Court in this case of the observation made in Attorney-General v Hill that the concern is not with whether the
41 Although s 88B uses the words “persistently and without any reasonable ground instituted vexatious legal proceedings” it has recently been held that the phrase “and without any reasonable ground” is effectively otiose: Attorney-General v Siemer at [2014] NZHC 859 at [68] to [71].
42 Rule 1.3 of the High Court Rules defines “proceeding” as “any application to the court for the exercise of the civil jurisdiction of the court other than an interlocutory application”.
43 Brogden v Attorney-General [2001] NZAR 809 (CA).
44 Ibid, emphasis added.
proceeding was instituted vexatiously but whether it is properly described as a vexatious proceeding. Of course, if the litigant is found to have had an improper purpose in commencing proceedings, a finding that the litigation was vexatious is more likely. The test is, however, whether, overall, the various proceedings have been conducted by the litigant in a manner which properly attracts that epithet.
[136] The question whether a proceeding could be “vexatious” in terms of s 88B notwithstanding that it had no vexatious character at the date of commencement was, more recently, fully argued before a full bench of this Court in Attorney-General v Siemer.45 The Court held that it was bound by Brogden and that a proceeding can be
relevantly vexatious despite it not being so at the time it was instituted.46
[137] Lastly, the Judicature Act has emphasised that it is not necessary to have instituted a great number of separate proceedings in order to engage s 88B. As the Court said at [21] of Brogden:
… A litigant may be said to be persisting in litigating though the number of
separate proceedings he or she brings is quite small …
[138] The urge simply to adopt the s 88B authorities and approach on a wholesale basis must, I think be tempered by two matters of context.
[139] The first is that s 141 of the COCA has the important overlay of s 4 of the
Act, which relevantly provides:
(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 -
45 Attorney-General v Siemer, above n 41.
46 At [63].
(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
(ii) the principles in section 547; 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.
[140] The overlay of s 4 and, by way of that section, the s 5 principles, seem to me to be of most significance when it comes to considering the meaning of the word “vexatious” in s 141 but also if and when the point comes for the Court to determine whether, in the exercise of its discretion, it should make an order under that section.
[141] As far as the term “vexatious” is concerned, the s 88B cases commonly adopt a definition along the lines of “instituted without sufficient grounds for winning purely to cause trouble or annoyance to the defendant”.48 Putting to one side the fact that this definition appears concerned solely with the commencement of proceedings (as to which, see the discussion above) it strikes me that this definition may not be entirely apt in a COCA case.
[142] First, there is the point (also made in relation to the s 88B cases) that notwithstanding the apparently subjective focus of this definition, the inquiry is, in fact an objective one. The question is not whether the instigator of the relevant proceedings
wishes to vex but whether he or she in fact does so.49 And more specifically, it seems to
47 The s 5 principles are:
(a) a child's safety must be protected and, in particular, a child must be protected from all forms of violence (as defined in section 3(2) to (5) of the Domestic Violence Act 1995) 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.
48 This definition comes from the Shorter Oxford Dictionary and was (for example) cited by the
High Court in the recent s 88B decision in Attorney-General v Seimer, above n 41, at [71] and also by Judge Callinicos in S v T, above n 40.
49 This point is implicit in the dicta from the authorities to which I have already referred and was made explicit by the Full Court in Attorney General v Reid [2012] NZHC 2119; [2012] 3 NZLR
630 at [27].
me that the focus in the orthodox definition on the “defendant” may well not be appropriate at all given the COCA requirement that the spotlight is to be on the best interests of the children.
[143] Accordingly, it seems to me that adopting a COCA–based approach would suggest that a proceeding might be vexatious under s 141 not because it is intended by the subject of the application to trouble, annoy or harm the children but because that is its effect. For example, a case for vexatiousness might be made out where, notwithstanding the absence of any subjective vexing purpose, the subject of the application simply lacks insight into, or is wilfully blind as to, the damaging effect the various proceedings were having on the children.
[144] Similarly, in terms of the exercise of discretion, the incorporation of s 4 and the s 5 principles serves as a reminder that the Court must be concerned not only with the future interests of the parties strictly so called (and with the administration of justice) but with the interests of the children who have become embroiled in the various proceedings. And as I have said, s 141 seems to form part of a very clear legislative signal that the Courts are to be particularly vigilant in taking steps to protect those who may become caught up in Family Court litigation which does, so easily and so often, turn into a modern day (and real life) saga of Dickensian proportions.
[145] The second piece of statutory context relevant to the interpretation of s 141 is the recent enactment in the COCA of s 139A, which provides:
(1) A proceeding (a new proceeding) may not be commenced under section 46R, 48, or 56 without the leave of the court if that new proceeding–
(a) is substantially similar to a proceeding previously filed in a
Family Court50 by any person (a previous proceeding); and
(b) is to be commenced less than 2 years after the final direction or order was given in the previous proceeding.
50 The reference here to “Family Court” is strange, given the earlier and later use of the more generic word “court”, which is defined to include the High Court. I cannot accept that, in those rare cases such as the present where the High Court has first instance carriage of proceedings under the COCA that s 139A does not apply because any relevant earlier proceedings commenced in relation to the same matter have not been filed in the Family Court.
(2) The leave of the court may only be given under subsection (1) if, since the final direction or order was given in the previous proceeding, there has been a material change in the circumstances of–
(a) any party to the previous proceeding:
(b) any child who was the subject of the previous proceeding.
(3) In this section, a new proceeding is substantially similar to a previous proceeding if -
(a) the party commencing the new proceeding was a party to the previous proceeding; and
(b) a child who is the subject of the new proceeding was the subject of the previous proceeding; and
(c) the new proceeding–
(i) is commenced under the same provision of this Act as the previous proceeding; or
(ii) is for an order varying the order made in the previous proceeding; or
(iii) is for an order discharging the order made in the previous proceeding.
(4) This section does not apply if every party to the new proceeding consents to its commencement.
[146] It seems to me that s 139A is a further legislative reflection of the concerns just mentioned above. Its principal other significance in terms of s 141, however, is that it now acts as a partial, statutory, brake on future proceedings. In that sense it is something of a half-way house between s 141 and complete freedom to litigate. Its existence and operation may mean that resort to s 141 is not required in some cases which, prior to its enactment, have been suitable candidates. So whether, in any given circumstances, s 139A suffices to protect the interests that are also protected by s 141 will, in my view, be relevant to the exercise of the Court’s s 141 discretion.
[147] It is on the basis of the foregoing analysis that I turn now to the present application. I deal first with Ms Alder.
Ms Alder
[148] Ms Cole’s helpful submissions set out a number of applications (including interlocutory applications and appeals) that have been brought under the COCA in relation to Gillian and Tom by Ms Alder since 2007. She summarised these as follows:
(a) five interlocutory applications;
(b)six applications for parenting orders, or for variation of parenting orders or for guardianship matters;
(c) three appeals.
[149] Notably, however, the list omits the application for parenting orders in relation to the older children that gave rise to Courtney J’s 2011 judgment which, as I have said, I regard as relevant. With that caveat, however, I agree with Ms Cole that the proper starting point is the substantive applications that have been made by Ms Alder; they are the “proceedings under this Act” that are of central relevance here.
[150] I also acknowledge at the outset Ms Cole’s point that some of Ms Alder’s applications have, in varying degrees, been successful and also that her latest application for the day to day care of Gillian and Tom was, at least initially, accepted by counsel as being justifiable, given the unfortunate events of 2013 and 2014.
[151] What is of concern here, however, is what may now properly be called the pattern of deception and deceit in the way in which these applications were progressed and in Ms Alder’s interactions with the Court and its agents. The first threads can be discerned, in the cautious observations made by Courtney J in 2009. But the pattern emerges, and can be seen more clearly, in the events leading to and recorded in her 2011 judgment about the four older children. And while it seems that the pattern may then have merged briefly into the background, the shadow of its existence, and the possibility of its re-emergence, was recognised by Priestley J in
passages from his 2013 judgment which I have set out earlier. And the consequences of it doing so could not have been more clearly stated by the Judge.
[152] I have also already noted that Ms Alder chose not to heed Priestley J’s final plea to let matters rest for a while, in the interests of the Gillian and Tom. Instead she appealed his judgment. And whatever her reasons may have been for eventually abandoning her appeal, she nonetheless left it hanging like a Damoclean sword over the heads of the children for some considerable time. The negative psychological effects of the appeal on the children were specifically referred to by Dr Blackwell.
[153] And lastly, there was the application before me. As I have said, other counsel and the court necessarily accepted that the change of circumstances wrought by Ms Evans’ actions in 2014 meant that s 139A did not operate to prevent Ms Alder from making it. Nor could it be denied that Ms Evans’ actions potentially raised issues about the children’s continued well-being. And I also accept that the evidence was clear that Ms Alder has been a good and caring mother to the older children.
[154] But while Ms Alder’s recent application was, in the abstract, justifiable, I consider that viewed in context and with hindsight, it was not. It certainly ceased to be so as soon as she and Mr Hanover determined that it was to be pursued on a dishonest factual basis. And in my view the evidence I have traversed above gives rise to a strong inference that a decision was made by them at an early stage to embark on yet a further course of obfuscation and deception. That is precisely the type of behaviour that Courtney J first identified as troubling in 2009, and which was then the subject of express condemnation by her in 2010 and of Priestley J’s explicit warning in 2013.
[155] I consider that, based on the history of the matter and the evidence at the
2015 hearing, Ms Alder has (either continuously or sporadically) over the last seven years been complicit in a strategy whereby:
(a) Mr Hanover’s formal role in any proceedings under the Act has been minimised. This strategy has enabled him:
(i)to (attempt to) avoid giving evidence or to be otherwise answerable to the Court;
(ii)to appear or not appear as he chose at conferences and hearings while maintaining the maximum opportunity to run interference on Ms Alder’s behalf and to demand substantive input when he wishes;
(b)Mr Hanover’s role in Ms Alder’s life would be falsely minimised to the Court and its agent, presumably in order (inter alia) to maximise her applications’ chances of success.51 In particular, I consider that the undertaking offered by Mr Hanover to the Court (that he would have no contact with Gillian and Tom were they returned to Ms Alder’s care) was empty and known by Ms Alder to be so;
(c) Other aspects of Ms Alder’s circumstances (where she lived, the amount of rent she paid and to whom she paid it and her financial position) would be falsely represented, also presumably to maximise her applications’ chances of success.
[156] And there is also the fact that Ms Alder provided a legal document to the
Court knowing that, as all the evidence suggests, it was a forgery.
[157] Decisions made about Mr Hanover’s role in the proceedings might, I suppose, be regarded as some form of legitimate litigation strategy, although I confess to having reservations about that in a COCA context. But the other matters I have just listed are, on any analysis, extremely serious. Priestley J’s warning must have made it clear beyond doubt that misleading the Court was a contempt and an abuse of process. And in a COCA context, where the clear evidence was (prior to her making the application) and continued to be (after she had made it) that Gillian and Tom were severely traumatised by the litigation and its possible outcome,
Ms Alder’s conduct in pursuing the application on a dishonest basis is worse than
51 I accept that there may well be a number of reasons why Ms Alder and Mr Hanover (and
Mr Hanover in particular) wish to fly under the radar but that is for others to consider.
that. In my view it certainly renders the application vexatious within the meaning I have discussed above. And to the extent that Courtney J’s comments left room for any doubt on the issue, so too were her earlier applications, the conduct of which was undertaken in the same deceptive manner and with the same disregard for the harm that might potentially be done to the children.
[158] Accordingly, and although the circumstances are unusual, I consider that the s 141 threshold is crossed in Ms Alder’s case. The question that then falls to be considered is whether a litigation embargo should, as a matter of discretion, be ordered. I regard the following matters as particularly relevant to that issue:
(a) The interest that Ms Alder has and continues to have in her relationship with Gillian and Tom and the corresponding interest that they have in maintaining some contact with their biological family;
(b) Other (conflicting) matters going to the best interests of Gillian and
Tom; and
(c) Whether those interests can sufficiently be protected by the operation of s 139A.
[159] As to the first two matters, my clear view is that the interests reflected in the COCA principles contained in s 5(e) and (f) are considerably outweighed by the interests reflected in principles s 5(a) and (d). The concerns expressed by Priestley J in 2013 about the effect of ongoing litigation on Gillian and Tom have only increased and, indeed, been exacerbated by what has occurred. For whatever reason, Ms Alder seems unable to accept or to have real understanding of the extent of the harm it has done.
[160] Permitting Ms Alder to continue to make further applications of the sort she has previously made (by which I mean applications which cause Gillian and Tom significant psychological damage and in circumstances where the Court can have no confidence that she will be frank, forthcoming or honest about important and relevant matters) is contrary to Gillian and Tom’s best interests. I do not consider
that she will voluntarily cease to do so. In that respect I accept that her conduct of the (unrelated) tenancy litigation (which I do not intend to detail here but which is a matter of record) is a powerful indicator of her tendency to persist in litigation past the point of rationality.
[161] Conversely, and in terms of Ms Alder’s own undeniable (but ultimately
secondary) interests, I can only repeat what Priestley J said in 2013:52
There is ample authority for the proposition that biological parenthood cannot be accorded priority, nor does it confer some parental right which can be enforced to the detriment of the paramount consideration of a child’s welfare.
[162] I have, however, carefully considered whether the operation of s 139A would suffice to protect the children’s interests in this respect. As I have said, it provides that, absent a material change of circumstance or leave of the court no application for parenting orders could now be made by Ms Alder for two years. This was accepted by Ms Cole on Ms Alder’s behalf.
[163] Regrettably, however, history has shown that changes of the circumstances of the lives of these two children are all too frequent. I have little doubt that their circumstances will continue to change; it is unrealistic to expect that Ms Evans will wish to remain at a distance and it may well not be in Gillian and Tom’s interests that she does so. The children and the Court need to be able to respond to any such changes without the constant prospect of Ms Alder using them to run interference and the threat of further litigation.
[164] And lastly, there is the fact that an order under s 141 does not completely preclude the bringing of proceedings under the Act. The terms of the order may in themselves be limited. And even if the prohibition is general, leave can be sought. As the Court said in Reid:53
[28] Once an order is made, the Court continued to say, this Court becomes a “gate keeper or supervisor to ensure that the processes of the Courts are not abused”. In its capacity to grant or refuse leave this Court is able to impose conditions:
52 Re Hanover, above n 4, at [74].
53 Attorney General v Reid, above n 49.
“which may be a means of ensuring that the litigant pursues the proceeding in a proper manner. The interests of the litigant and the intended defendant, and the public interest in the proper administration of justice can, by way of these controls, be appropriately balanced. Repetition of the litigant's vexatious use of legal proceedings can be prevented.”
[29] Thus, the Court said, the litigant is not denied access to the Courts and thus, the Court was confident, the “rights guaranteed to a litigant under s 27 of the Bill of Rights Act 1990, can by this means be weighed and accommodated”.
[165] Moreover, in the present case, given the inevitability of the Court’s ongoing guardianship role and its continued oversight of Gillian and Tom, it will be well placed to assess the merits of any such application in relatively short order.
[166] In the end, and in the unique circumstances of this case, I consider that the application under s 141 in relation to Ms Alder should be granted. The potential harm to Tom and (particularly) to Gillian arising from the uncertainty that is attendant on the prospect of further applications by her is simply too great.
Mr Hanover
[167] As far as Mr Hanover is concerned, the impediment is that he, personally, has made no application to the Court since about 2008. Notwithstanding that he has (in my view) been up to his neck in the matters I have discussed in relation to Ms Alder, he does not appear to meet the s 141 threshold. Although it is tempting to regard him as some kind of de facto co-applicant with Ms Alder, that path seems fraught with difficulty.
[168] In reaching the conclusion that I cannot make an order under s 141 in relation to Mr Hanover, I take some comfort in the following.
[169] First, his past conduct suggests that he has been, and may continue to be, reluctant formally to take steps in relation to these matters. Flying under the radar seems to be his modus operandi and it may be supposed that he will remain concerned to avoid, if possible, direct engagement with the Court and its machinery. And in light of his history, he is right to be wary. Moreover the wider consequences for him of what unfolded at the 2015 hearing have yet to be determined.
[170] Secondly, Mr Hanover has only ever had supervised contact with Gillian and Tom, and does not have the day to day care of the three older children. A realistic approach would suggest that there was no basis upon which a parenting order application in relation to Gillian and Tom could be advanced by him.
[171] Thirdly, it is likely that s 139A would operate to prevent him making any application of his own, absent a material change of circumstances. The issue would be whether an application made within the next two years by Mr Hanover (say) for a parenting order would (absent a material change of circumstances) be properly regarded as “substantially similar” to the application made by Ms Alder in 2014. Given the conclusions I have reached above about the reality of their living situation there are good arguments to be made that an application made by one of them should be regarded as an application made by both.
[172] There also remains the possibility that any costs order I make against Mr Hanover could make it clear that payment of those costs is a pre-condition of his taking any further steps. That is a course that Ms Kearns urged upon me and I will consider it in more detail in the costs judgment that is to follow.
Application by MSD for access to the Court file
[173] It was agreed that the need for this application would be reassessed after this judgment was issued and so I do not deal with it here.
Recusal
[174] Mr Hanover’s 18 March 2015 memorandum asked me to recuse myself on the grounds that:
(a) There had been procedural unfairness throughout the hearing;
(b) That I had displayed bias and/or pre-determination during the hearing. [175] In light of what Mr Hanover said in his memorandum I issued a minute on
18 March inviting him to file further submissions. I also recorded the advice
received at the telephone conference that day (which Mr Hanover did not attend54)
that no other counsel wished to be heard on the recusal issue.
[176] Mr Hanover filed a further memorandum in accordance with my invitation. I attempt to set out the further matters raised by it in order. First, Mr Hanover said that:
Your Honour’s ruling in regard to the position of Privilege under section
129(3) of COCA was also incorrect and Bias.
[177] I have referred to that issue in more detail above and do not propose to repeat what I said here.
[178] Secondly, Mr Hanover said my refusal to permit him to pursue a line of cross-examination that might require the calling of rebuttal evidence meant that his opposition to the Saunders’ application was “stifled” from the outset. This proposed evidence related to the breach by Mr Saunders of an undertaking he had previously given to Priestley J that he would notify the Court immediately if there were any incidents of domestic violence against Ms Evans.
[179] Thirdly, reference is made by Mr Hanover to the time limits I placed on his cross-examination of Mrs Saunders.
[180] Fourthly, he says that the court’s expression of gratitude to the Saunders for the interim care that they had provided for Gillian and Tom in the difficult circumstances that arose late last year was unnecessary, gratuitous and displayed a lack of impartiality.
[181] Fifthly, he was critical of my 13 March minute, the content of which I have set out above.
[182] Sixthly, he submitted that the direction to the social worker to make inquiries
of the school was made without jurisdiction and contravened his daughters’ rights under the Privacy Act. He said that that direction “can only be seen as intended by
54 He has subsequently said that he did wish to attend but was not connected.
the Court to support its adverse position against Ms [Alder]”, particularly given that her application had by then been discontinued. Again, I have set out the circumstances in which the direction was made earlier in this judgment.
Discussion
[183] It will be observed that the nature of the complaints made by Mr Hanover all relate to the actual conduct of the hearing. It seems to me that the principal issue raised is whether the matters referred to indicate any relevant actual bias or partiality on my part. And in relation to some of the issues (such as the proper interpretation and application of s 129) the relevant question would seem to me to be whether I simply got it wrong.
[184] As the authorities relied upon by Mr Hanover made clear, the two critical inquiries in a recusal case are:55
(a) identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and
(b)articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.
[185] The principal difficulty faced by Mr Hanover is that most of the matters identified by him as evidencing partiality have little or no bearing on either the substantive outcome of the cross-applications or (even) on the subsequent and ancillary issues to which this judgment relates.
[186] As far as the cross-applications for parenting orders are concerned, these were resolved not by me but by the fact that Ms Alder withdrew one of them, leaving only the other standing. There was never any suggestion from any other party (including Mr Hanover, who absented himself from the hearing at the critical time) that there might be some alternative care arrangement and nor did the existence of
any such alternative suggest itself. Moreover, in light of the strong views of the
55 Saxmere Co Ltd v New Zealand Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] NZLR 35 at [4].
children and the toll the litigation was taking on them it is most unlikely that any such alternative could properly have been countenanced.
[187] As far as the other ancillary matters are concerned, there are two points made by Mr Hanover that potentially have some relevance. The first is the provisional (but later confirmed) view in my minute dated 13 March 2015 that Ms Alder’s apparent pursuit of her application on a dishonest basis might be seen as abusive. The second is my direction to the social worker to make inquiries of the older children’s schools.
[188] I acknowledge that there is some connection between those matters and the conclusions I have subsequently reached in relation to the application under s 141 and, potentially, in relation to the issue of costs.
[189] As far as the minute is concerned, however, the suggestion that I should have disqualified myself from determining the ancillary applications because of the provisional view expressed in it, has an air of unreality about it. The issues with which I was required to deal were all consequential upon the substantive applications and the views formed during the hearing. The suggestion that some other judge, who had not sat through the hearing, should deal with them appears to me to be illogical and inexpedient. As the Court of Appeal said in Muir v Commissioner of Inland
Revenue:56
[98] It has to be accepted that there are occasions when a judge’s prior rulings might lead a reasonable person to question whether he would remain impartial in any subsequent proceedings. That said, this could be relevant to the question of judicial bias only in the rarest of circumstances.
[99] The reasons for this are straightforward. It is common sense that people generally hate to lose, and their perception of a judge’s perceived tendency to rule against him or her is inevitably suspect. As Kenneth Davis has said, “Almost any intelligent person will initially assert that he wants objectivity, but by that he means biases that coincide with his own biases” (Administrative Law Treatise (2 ed Vol 3 1978) at 378). Every judicial ruling on an arguable point necessarily disfavours someone – judges upset at least half of the people all of the time – and every ruling issued during a proceeding may thus give rise to an appearance of partiality in a broad sense to whoever is disfavoured by the ruling. But it is elementary that the judge’s fundamental task is to judge. Indeed the very essence of the judicial process
56 Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495 (CA).
is that the evidence will instil a judicial “bias” in favour of one party and against the other – that is how a court commonly expresses itself as having been persuaded.
[100] The general approach that judicial disqualification is not warranted on the basis of adverse rulings or decisions is also justified by appropriate concerns about proper judicial administration. There is huge potential for abuse if recusal applications were permitted to be predicated on a party’s subjective perceptions regarding a judge’s ruling.
[101] We know of no common law jurisdiction which accepts that a judge’s adverse rulings are disqualifying per se. The problem is rather whether an aggrieved litigant should be permitted to seek recusal on the basis of rulings that are either so patently erroneous or so disproportionate as to suggest that something untoward must have motivated them. Even a statistical approach cannot obtain here: most judges will be able without any difficulty to recall trials in which regrettably they have had to endorse every single point which has been advanced against a particular party.
[102] Turning now to adverse comments, judges are duty bound to refrain from making unnecessary comments. The various codes of judicial conduct
– including the Australasian ones – call on judges to be courteous to the
litigant, observe proper decorum, and to be particularly cautious and circumspect in their language. And judges should not issue oral condemnations that are unrelated to the furtherance of the cause to be decided or are simply gratuitous.
[103] Comments as such will ordinarily not suffice to warrant recusal. What is important is that commentary should not however demonstrate that the judge has formed a fixed opinion as to the ultimate merits of the matter pending before him or her. It has to be shown, in short, that the judge does not have an open mind.
[190] It is notable that these dicta were expressed in an appellate context. That confirms my general reluctance to form a view on whether any aspect of what I said or did during the hearing could reasonably be interpreted as exhibiting partiality against Mr Hanover (or Ms Alder) or was so “unnecessary, gratuitous or unduly severe” that bias might be inferred. Embarking on my own examination of those issues would risk either an inappropriate exercise in after the fact self-justification or (if my conclusion went against Mr Hanover) would simply be open to the same criticisms.
[191] My view that the Privacy Act did not preclude the Court from directing an inquiry of the older girls’ schools also stands or falls on its own merits. The submission that the direction was made with the intention of fortifying the adverse view I had already formed about Ms Alder must be viewed in light of the fact that
such inquiries form an entirely orthodox part of the s 132 report writer’s task.
Beyond that I do not propose to comment, for the reasons already given.
Result
[192] By way of summary and conclusion:
(a) the parenting and guardianship orders I made on 13 and 18 March
2015 and recorded at [111] and [112] above, are confirmed for the reasons given in this judgment;
(b)Mr Wilton’s application for contact is granted in modified terms. Any contact is to take place within the strict parameters of the proposal put forward by counsel for the children on 31 July 2014 and recorded by me above;
(c) the application under s 141 of Care of Children Act 2004 in relation to Ms Alder is granted and, accordingly, she may not commence any proceedings under that Act in relation to the day to day care of, or contact with, Gillian and Tom without leave of this Court;
(d) the application under s 141 of Care of Children Act 2004 in relation to
Mr Hanover is declined;
(e) the reasons for declining Mr Hanover’s application that I recuse
myself are as set out above.
“Rebecca Ellis J”
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