Harris v Family Court at Auckland
[2023] NZHC 258
•22 February 2023
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-2533
[2023] NZHC 258
IN THE MATTER of an application for judicial review BETWEEN
‘AMANDA HARRIS’
Plaintiff
AND
THE FAMILY COURT AT AUCKLAND
First Defendant
‘CHARLES BARKER’
Second Defendant‘MARTIN BARKER’
Third Defendant
Hearing (via VMR): 3 May 2022 and 9 November 2022 Appearances:
S Abdale for the Plaintiff (granted leave to withdraw on 31 October 2022)
No appearance by or for the First Defendant (abiding the decision of the Court)
CEA Townsend for the Second and Third Defendants
Judgment:
22 February 2023
JUDGMENT (ANONYMISED) OF GAULT J
This judgment was delivered by me on 22 February 2023 at 2:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
HARRIS v THE FAMILY COURT AT AUCKLAND [2023] NZHC 258 [22 February 2023]
TABLE OF CONTENTS
Background [3]
Family Court proceedings [8]
The 23 March 2020 without notice decision [14]
Applications by Ms Harris and Mr Martin Barker [19]
The 10 December 2020 submissions only decision [25]
The February 2021 reasons for orders made on 10 December 2020 [26]
The 6 July 2021 decision [37]
This judicial review proceeding [42]
Leave to amend pleading and adduce OT’s CYRAS notes [45] Issues [57]
Applicable principles [59]
Breach of natural justice [68]
Unreasonableness [71]
Post-hearing developments [75]
Substantive Family Court judgment [76]
Ms Harris’ subsequent affidavits [81]
Further hearing [87]
Ms Harris’ further filing [92]
Family Court’s 23 March 2020 decision (fourth and fifth causes of action) [95]
Family Court’s 10 December 2020 and 12 February 2021 decisions
(first and second causes of action) [121]
Family Court’s 6 July 2021 decision (third cause of action) [129]
Conclusion [134]
Costs [135]
[1] Amanda Harris applies for judicial review of the following decisions of the Family Court at Auckland in proceedings under the Care of Children Act 2004 (the Act) concerning her daughter Lily:
(a)the decision of Judge M Duggan dated 23 March 2020, made without notice, granting the second defendant’s applications for leave to apply for a parenting order, interim parenting orders, and a warrant to enforce the interim parenting orders;1
(b)the submissions only decision of Judge T H Druce dated 10 December 2020;2
(c)the reasons judgment (for the 10 December 2020 decision) of Judge T H Druce dated 12 February 2021;3 and
(d)the decision of Judge T H Druce dated 6 July 2021 refusing to grant leave to appeal or to recall the decisions at (b) and (c) above following new evidence.4
[2] The first defendant abides the Court’s decision. The second defendant, the child’s paternal grandfather (Mr Charles Barker), and the third defendant, the child’s father (Mr Martin Barker), oppose the application for judicial review.
Background
[3] In about March 2014, Ms Harris and Mr Martin Barker met in Sydney and commenced a relationship.
[4]On 10 August 2015, their daughter Lily was born in Sydney.
1 Re Barker FC Auckland FAM-2020-004-000250, 23 March 2020 (Memorandum of Judge M Duggan).
2 Barker v Harris FC Auckland FAM-2020-004-000250, 10 December 2020 (Minute of Judge T H Druce).
3 Barker v Harris [2021] NZFC 1189. Ms Abdale says the decision was delivered on 15 February 2021.
4 Harris v Barker [2021] NZFC 6404.
[5] In 2017, Ms Harris and Mr Martin Barker separated. In March 2017, when Lily was 19 months old, she travelled to Auckland with Ms Harris and lived in the home of Lily’s paternal grandmother (Mr Charles Barker’s ex-wife) for several months. From March 2017 until March 2020, Lily was in Ms Harris’ day-to-day care. Mr Martin Barker continued living in Sydney but maintained regular contact virtually and had in-person contact with Lily every four to five weeks in Auckland and for extended times as agreed, including at Christmas.5
[6] From late 2018 or early 2019 until about September 2019, Ms Harris was in a relationship with Mr Kevin Ridge.
[7] On 4 February 2020, Mr Martin Barker’s (then) counsel wrote to Oranga Tamariki (OT) referring to Ms Harris’ “ever increasing erratic behaviour” and making a confidential notification “because of concerns to Lily’s safety in her mother’s care warranting an urgent investigation” by OT. The stated concerns were:
(a)A strong suspicion that Ms Harris was using and had become a methamphetamine addict (and that potentially other substance abuse issues were also at play).
(b)That she had been acting aggressively and violently toward Mr Martin Barker and his family members.
(c)That Mr Martin Barker had been told that methamphetamine dealers had been seen at her home.
(d)That her former partner (Mr Ridge) had obtained a protection order against her and that he had also advised Mr Martin Barker that he had concerns for Lily’s safety in Ms Harris’ care. Furthermore, Constable Harbrow in the Family Harm Team had been involved in the case and their file was still open.
5 This arrangement was also reflected in a Parenting Agreement signed in September 2019.
(e)That Lily was exposed to conflict and left unsupervised by Ms Harris.
(f)That Ms Harris was not well or mentally stable (whether that was because she was drug induced or not).
Family Court proceedings
[8] On 19 March 2020,6 Mr Charles Barker, with the support of Mr Martin Barker applied without notice for leave to apply for a parenting order,7 and for a parenting order under s 48 of the Act.
[9] Mr Charles Barker provided an affidavit in support. He expressed a concern that Ms Harris was using/had become addicted to methamphetamine and potentially other substances. He said that from about January 2020 she had stopped contact, had been acting aggressively and erratically and that she had also become abusive. He also said she had started stealing by using his credit card for online purchases, after she obtained the details to the credit card used to pay for Lilly’s day care fees. He said that her most recent boyfriend (Mr Ridge) had obtained a protection order against her and that Mr Ridge had contacted Mr Martin Barker with concerns both for Lily’s safety and because methamphetamine dealers had been seen at Ms Harris’ address. The affidavit attached the 4 February 2020 letter to OT referred to above.
[10] Mr Charles Barker’s affidavit also said that an OT social worker (Ms Stafford) had investigated as requested, and had suggested a police welfare check and that Mr Martin Barker (or he) file an application for interim custody. Mr Charles Barker said that Ms Harris was arrested on 7 March 2020 and again on 18 March 2020, that as far as he knew she was still in custody, and that Lily was with his ex-wife. He explained that together the three grandparents were collaboratively caring for Lily. He said he had spoken to Ms Stafford and she had confirmed that he should apply for an urgent custody order. He also said he had spoken with the arresting police officer who had urged him to apply for a custody order as soon as possible.
6 Earlier documents had apparently not been accepted for filing the previous day.
7 He required leave under s 47(1)(d) of the Care of Children Act 2004.
[11] He also said that Mr Martin Barker had since told him that the police had confirmed that Ms Harris had been charged with burglary and that a methamphetamine pipe had been found in her home together with a bag that tested positive for the drug. He said that Mr Martin Barker also told him to make arrangements for Lily because the police were looking to remand Ms Harris in custody. He explained that Mr Martin Barker had made plans to come to New Zealand to apply for urgent custody but had been prevented by COVID-19 travel restrictions. He attached a letter dated 18 March 2020 from Mr Martin Barker in support of the application and which confirmed the contents of his affidavit.
[12] Mr Charles Barker provided a further affidavit dated 22 March 2020 as a result of the Prime Minister’s COVID-19 announcement addressing why he could provide safe and caring custody of Lily.
[13] On 23 March 2020, Mr Charles Barker’s counsel also filed an application without notice for a s 72 warrant to enforce the interim parenting order.
The 23 March 2020 without notice decision
[14] The applications for leave to apply for a parenting order on a without notice basis, for the interim parenting order itself and for a warrant to enforce that order were dealt with on the papers and granted by Judge Duggan, as Duty Judge, on 23 March 2020.8 The Judge was satisfied that the delay that would be caused by making the application on notice would or might entail serious injury or undue hardship, or risk to the personal safety of the applicant or any child of the applicant’s family, or both.
[15]In relation to the interim parenting order, the Judge’s reasons were:
It appears that the Applicant is currently using methamphetamine and is behaving erratically and out of character. [Lily] at 4 is very vulnerable. The Second Respondent is not able to make an urgent application as he is in Australia and unable, due to the travel restrictions, to get into New Zealand urgently. The Applicant knows [Lily] and he and his ex-wife (the paternal grandmother of [Lily]) are familiar with [Lilly’] needs and are both set-up to care for her on an interim basis.
8 Re Barker FC Auckland FAM-2020-004-000250, 23 March 2020 (Memorandum of Judge M Duggan).
The urgent, interim, application is supported by the Police and Oranga Tamariki.
[16] The Judge also appointed a lawyer for the child and requested a report from OT under s 131A of the Act.
[17] Since that interim without notice decision, Lily has been in Mr Charles Barker’s day-to-day care. Prior to the decision, neither Mr Charles Barker nor his wife had had day-to-day care of Lily.
[18] On 25 March 2020, Ms Harris was served with the Family Court proceedings. The first COVID-19 Level 4 lockdown in 2020 came into effect that night.
Applications by Ms Harris and Mr Martin Barker
[19] On 9 April 2020,9 Ms Harris filed a without notice application for a new parenting order (under s 48 of the Act) or to remove the existing order (under s 56, which governs the variation or discharge of parenting and other orders) seeking the return of Lilly’s care to her.
[20] That same day, Family Court Judge S J Maude declined to make an interim parenting order and declined to vary the existing order.10 The Judge noted that the issues in dispute were urgent, directed that the matter should be dealt with on the without notice track (but on notice) and directed a hearing. The Judge noted the evidence on which Judge Duggan’s order was made and said that against “compelling evidence” there was not “sufficient evidence to warrant without notice reversal of the uplift”.11
9 Ms Abdale, for Ms Harris, initially submitted that Ms Harris had applied to discharge the orders on 26 March 2020 on the basis there was no evidence that was not hearsay in relation to her alleged drug use or otherwise. Ms Abdale submitted the 26 March 2020 application was not dealt with separately from the 9 April 2020 application. However, Ms Abdale only had an unstamped version of a 26 March 2020 application and it may not have been filed. Indeed, Ms Harris’ affidavit of 9 April 2020 in support of her 9 April 2020 application indicates she could not file earlier. However, nothing turns on this given the 9 April 2020 application.
10 Harris v Barker FC Auckland FAM-2020-004-000250, 9 April 2020 (Memorandum of Judge S J Maude).
11 The Judge did not refer to OT’s s131A report dated 7 April 2020 which raised further concerns about both Ms Harris and Mr Martin Barker.
[21] In mid-April 2020, Mr Martin Barker filed his own application for day-to-day care along with an application pursuant to s 46R seeking Lily’s relocation to Sydney to live with him.
[22] On 30 April 2020, by which time Ms Harris was represented by counsel, there was a directions conference where the applications were set down for an urgent half day hearing (in July).
[23] On 2 July 2020, the urgent hearing was vacated by consent and an interim parenting order was made by consent providing for Lily’s day-to-day care to continue with Mr Charles Barker and for her to have a minimum of eight hours supervised contact per fortnight with Ms Harris made up of twice weekly visits of two hours each.
[24] On 2 September 2020, at a further directions conference, the Family Court directed a half day submissions only hearing.
The 10 December 2020 submissions only decision
[25] On 10 December 2020, following the half day submissions only hearing, Judge Druce issued a minute.12 The Judge noted that it was not possible for the Court to make reliable safety findings in a submissions only hearing. The Judge said there were a number of safety issues raised, and indicated he would issue a separate record of how he had read the evidence given time constraints. He adopted the recommendation made by aDapt (an accredited supervised contact agency) that supervised contact only occur at an accredited supervised contact centre, stating that Lily was “very vulnerable to being exposed to the adult issues in this case, particularly her mother’s worries about her safety in her paternal family’s care which have driven the mother to breach
12 Barker v Harris FC Auckland FAM-2020-004-000250, 10 December 2020 (Minute of Judge T H Druce).
supervised contact rules and to then anxiously question Lily putting pressure on her to be with her mother”.13 The Judge varied the interim parenting order accordingly.14
The February 2021 reasons for orders made on 10 December 2020
[26] Judge Druce’s subsequent reasons judgment for the 10 December 2020 orders was provided in February 2021. In it, he acknowledged the need for the Family Court to address concerns as to Lily’s safety in her mother’s care before permitting and supporting Lily to return to her mother’s care. The Judge said his conundrum was how to make safety findings in accordance with ss 5(a) and 5A (given that Ms Harris remained subject to a final protection order at the time) without the parties’ extensive evidence being subject to test by way of cross-examination.15
[27] The Judge stated that Ms Harris’ evidence on many points was “starkly in contrast to all other family members (both paternal and maternal)”,16 and that the different positions could effectively be summarised as follows:17
[Ms Harris] sees herself as an unfairly treated, good mother, who is drug free, able to maintain her work and life commitments and defending (until very recently) the one remaining representative charge of breach of protection order. She was earlier charged with burglary of [Mr Ridge’s] business premises but for reasons unknown, this charge was withdrawn.
The other parties (and other witnesses, such as [Ms Harris’] parents) consider [Ms Harris] to be unstable due to compromised mental health and possible drug abuse and at high risk of not supporting [Lily] having any continuing relationship with her extended family members if returned to her mother’s care. In addition, they point to [Ms Harris’] wilful breaches of her supervision contract with aDapt (an accredited supervised contact agency) resulting in aDapt withdrawing their services and recommending contact be limited to a supervised contact centre. They also point to [Ms Harris] threatening to uplift [Lily] from her grandfather’s care and to her intrusive and aggressive behaviour at Madill’s Farm Park on 18 November [2020] where she allegedly tried to remove [Lily] from her step-grandmother’s care at the end of [Lily’s] attendance at a children’s sports event.
13 Barker v Harris FC Auckland FAM-2020-004-000250, 10 December 2020 (Minute of Judge T H Druce) at [4].
14 In addition, the Court made other directions – directing a s 133 child psychological assessment, directing complex case management, extended s 60 funding and directing Ms Harris to hand in Lily’s passport to the Family Court Registrar. The Judge also recorded that the Family Court was supportive of Lily travelling to Australia for a period if that could be managed reasonably.
15 Barker v Harris [2021] NZFC 1189 at [16].
16 At [17].
17 At [17]-[18].
[28] The Judge explained that his approach was to determine whether, on the totality of the evidence, there was a clear and compelling case, beyond reasonable argument to the contrary, that the safety concerns underpinning the Family Court’s earlier decision to uplift Lily from her mother’s care had clearly resolved.18 The Judge considered that if this was the case, that the Court might then order Lily’s prompt return to her mother’s care.19 The Judge then proceeded to consider Ms Harris’ alleged substance abuse, mental health, family violence, and Lily’s views and development in order to make his decision.
[29] In relation to Ms Harris’ alleged substance abuse, the Judge addressed both Ms Harris’ “clear” hair strand tests of samples taken in May and June 2020, and other evidence which detailed Ms Harris’ alleged use of various drugs. In doing so, the Judge noted Ms Harris’ view that the P pipe and point bag found in her home by the Police were “planted”. The Judge concluded that while the hair strand test strongly indicated that Ms Harris was not regularly using any tested substances in the February to May 2020 period, there was “some reasonably arguable basis” to challenge the tests’ reliability and “significant evidence” that demonstrated that Ms Harris had “a history of some substance abuse”.20 On the totality of that evidence, the Judge concluded that he was not satisfied there was a clear and compelling case beyond reasonable argument that Ms Harris’ substance abuse posed no risk to Lily’s safety in her care.21
[30] In relation to Ms Harris’ mental health, the Judge referred to the expert evidence of Dr Patrick Daniels, a psychiatrist who provided expert evidence on Ms Harris’ mental health status as at 30 June 2020, the notes of Ms Harris’ General Practitioner and the evidence from Ms Harris and others. The Judge noted that Dr Daniels’ opinion was that Ms Harris’ presentation was most consistent with Other Trauma and Stressor-Related Disorder (DSM-5) and that the corroborative material raised the possibility of a fluctuating paranoid disorder.22 The Judge observed that while Dr Daniels’ opinion was that Ms Harris’ mental health presented no direct danger to Lily’s safety, Dr Daniels did note that her “disorder may adversely impact
18 Barker v Harris [2021] NZFC 1189 at [21].
19 At [21].
20 At [26]
21 At [27].
22 At [29].
on her capacity to engage in consistently supportive adult relationships”.23 Indeed, the Judge considered that particular observation to be “the crux of the risk to Lily arising from her mother’s mental health presentation”.24
[31] The Judge also noted that Ms Harris had made “extraordinary” allegations against the Barker family, which Ms Barker “unequivocally” denied.25
[32]Addressing all of the evidence, the Judge concluded:26
In summary, I find that there are distinct grounds for concern as to [Ms Harris’] mental health functioning that continue notwithstanding that the acute stresses she experienced in late 2019, with the breakup of her relationship with [Mr Ridge], and with the removal of [Lily] from her care, are somewhat diminished. While the evidence supports her being successful socially in her adult life and in her employment, nevertheless there is a pattern of vulnerability in her relationships with intimate partners and with close extended family members. Her self-reported history of trauma appears to link with her fearful/paranoid thinking about others when faced with conflict or loss. Her fearfulness of the parental family and her own parents mean that [Lily] is very clearly at risk of having important family relationships interrupted/severed.
[33] Accordingly, the Judge was not satisfied that there was a clear and compelling case, beyond reasonable argument to the contrary, that Ms Harris’ mental health and related cognitive functioning posed no further risk to Lily’s psychological welfare and safety.27
[34] In relation to family violence and s 5A of the Act, the Judge noted the protection order against Ms Harris, as required by s 5A, and the evidence filed in relation to it, including that of Mr Ridge.28 The Judge also acknowledged that OT had considered that Lily suffered psychological abuse by being exposed to several family violence incidents, but that OT did not take matters further themselves following Ms Harris’ separation from Mr Ridge.29 The Judge concluded that “there [was] a clear
23 Barker v Harris [2021] NZFC 1189 at [32].
24 At [33].
25 At [31]. For example, that Mr Martin Barker in Sydney and his brother in Queenstown were involved in drug trafficking and that Ms Harris and Mr Martin Barker’s mother were held at gun point in Ms Barker’s home by someone claiming that Mr Martin Barker’s brother owed money for drugs.
26 At [39].
27 At [40].
28 At [41]-[42].
29 At [43].
pattern of Ms Harris acting impulsively in angry/anxious/blaming ways during times of stressed relationships”, and that it “pervades her relationships” with the Barker family, Mr Ridge and even her own parents.30 Accordingly, the Judge determined that there was not a clear and compelling case, beyond reasonable argument to the contrary, that the family violence safety concerns that underpinned the Court’s earlier decision to remove Lily from her mother’s care had clearly resolved.31
[35] After also referring to Lily’s views and development,32 the Judge concluded overall that he was not satisfied there was a clear and compelling case, beyond reasonable argument to the contrary, that the safety concerns that underpinned the Court’s earlier decision to remove Lily from her mother’s care had resolved and that it was in Lily’s best interests to grant Ms Harris’ application for Lily’s return to her mother’s day-to-day care.33
[36] The Judge acknowledged the risks to Lily of not having a full and continuing relationship with her mother and hoped that the signs that Ms Harris was addressing her own traumas would lead to de-escalation of troubled relationships. The Judge also noted that the Family Court had been ready and willing to set the proceedings down for either a full safety hearing or a full substantive hearing, but it was Ms Harris’ decision not to proceed in this manner which had an impact on the direction of the proceedings.34
30 Barker v Harris [2021] NZFC 1189 at [44].
31 At [46].
32 At [47]-[51]. The Judge noted Lily’s thoughts on both living with her grandparents and wanting to see her mother; how Lily reportedly felt about seeing her mother on 11 June 2020; a report from aDapt on her supervised visits with her mother; her reported reactions following those visits and about her mother generally; and the reports of various social work inquiries at her school. The Judge concluded from this evidence that “[Lily] wants to have a continuing relationship with her mother and is generally settled and happy in her grandparents’ care and at her school” but that there were signs she was aware of her mother’s negative view of the Barker family, which needed to be better understood.
33 At [53].
34 At [54]-[57].
The 6 July 2021 decision
[37] On 17 May 2021, Judge Druce heard three further interlocutory applications, delivering judgment on 6 July 2021.35 These were:
(a)Ms Harris’ application for recall of the interim parenting decision of 10 December 2020;
(b)Ms Harris’ application for leave to appeal the 10 December 2020 decision; and
(c)Mr Martin Barker’s application for permission to have contact with Lily in Sydney during school holiday periods.
[38] Addressing the application for recall, the Judge said that Ms Harris had filed an affidavit sworn on 24 March 2021 which she said provided evidence (set out in five documents annexed to that affidavit) that was not available on 10 December 2020. She said this information was held on her iPad but was inaccessible to her at the time. Ms Harris alleged that her Apple ID had been hacked by Mr Ridge (or his agent) and that she was unable to access relevant messages and photographs stored on the device until early March 2021. She explained that having since gained access, she had been able to slowly download information and present evidence to disprove the allegations made about her.
[39] In summary, the Judge did not accept the five documents were unavailable to be adduced earlier because of Ms Harris’ inability to access her iPad. The Judge noted that some of the evidence was not even on the iPad, that one of the documents had already been adduced in evidence for the 10 December 2020 hearing and that the other documents could have reasonably been obtained prior to 10 December 2020.36 The Judge also found that they were of limited relevance to the parenting issues before the Court.37 Accordingly, the application for recall was dismissed.38
35 Harris v Barker [2021] NZFC 6404.
36 Harris v Barker [2021] NZFC 6404 at [3(a)]-[4].
37 At [4].
38 At [5].
[40] In relation to the application for leave to appeal, the Judge considered the relevant factors as set out by Ellis J in Malone v Auckland Family Court,39 and applied them to the case.40 In essence, while the Judge noted that the interim orders substantially impacted Lily’s relationship with her mother, the Judge ultimately considered that leave to appeal should be declined given that Lily’s best interests and the interests of justice lay in advancing the substantive hearing, which granting leave would only delay, and because the advancement of that substantive hearing had been delayed by Ms Harris herself.41 Accordingly, the Judge declined leave to appeal.
[41] Finally, in relation to Mr Martin Barker’s application, the Judge made orders permitting Lily to travel to Australia for the purposes of contact with her father on specific terms and conditions, noting that it was in Lily’s best interests, having regard to s 5(e), that her relationship with her father and his family was preserved and strengthened.42
This judicial review proceeding
[42] Ms Harris commenced this judicial review proceeding on 23 December 2020 (that is, after the Family Court decision on 10 December 2020 but before the February 2021 reasons judgment and the separate 6 July 2021 judgment). Initially, Ms Harris was self-represented. She filed a without notice application for interim relief seeking to reverse the interim parenting order. Her affidavit in support stated that the allegations of drug use and mental instability were false. I directed that the application for interim relief be served. It was not pursued to an interlocutory hearing. The interlocutory application and case management of the proceeding were
39 Malone v Auckland Family Court [2014] NZHC 1290 at [29]. The relevant factors are: (a) the welfare of the child, which is the first and paramount consideration; (b) the interests of justice including the interest in the finality of litigation; (c) the nature of the interlocutory order in respect of which leave to appeal is sought and, in particular, whether it was procedural only and what effect it is likely to have on the ultimate outcome of the case; (d) the nature and importance of the proceedings generally whether from the point of view of legal principle or importance to the parties; (e) the importance of the proceedings to the child and any prejudice likely to be suffered by the child as a result of the grant or refusal to leave; and (f) the effect on the child and on the other party of any delay resulting from the granting of leave and hearing of the subsequent appeal.
40 Harris v Barker [2021] NZFC 6404 at [10]-[20].
41 At [10]-[20].
42 At [30].
subsequently adjourned pending progress in the Family Court and a separate appeal that Ms Harris had filed in this Court.43
[43] On 31 August 2021, once Ms Harris was represented by counsel, she filed an amended statement of claim, a further application for interim orders seeking to vary the interim parenting orders and an unsworn affidavit in support. The second and third defendants sought to strike out the pleading, resulting in a further amended statement of claim dated 4 October 2021. The further application for interim orders was also not pursued to a hearing. The substantive judicial review hearing was scheduled for 2 December 2021 but was adjourned after Ms Harris filed further documents on 25 November 2021. Unfortunately, a fixture in March 2022 also had to be adjourned by consent due to COVID-19.
[44] Ms Harris’ intended claim is contained in both her (second) amended statement of claim dated 4 October 2021 and her supplementary amended statement of claim dated 25 November 2021 (which sought to add new causes of action without repeating or replacing the causes of action in the 4 October 2021 pleading). Together, these two statements of claim contain:
(a)In the 4 October 2021 pleading, the first cause of action which alleges breach of natural justice by the Family Court in relation to the decision at the submissions only hearing on 10 December 2020; the second cause of action which alleges unreasonableness by the Family Court in relation to the reasons decision dated 12/15 February 2021; and the third cause of action which alleges unreasonableness by the Family Court in declining leave to appeal on 6 July 2021.
(b)In the supplementary 25 November 2021 pleading, the fourth and fifth causes of action which relate to the Family Court’s initial without notice decision dated 23 March 2020. The fourth cause of action alleges
43 The application for leave to appeal the interim parenting order to this Court was withdrawn on 10 August 2021 once absence of jurisdiction was identified following CDA v DGP [2019] NZHC 3277, in which Whata J determined that there is no jurisdiction to apply to the High Court for leave to appeal and to appeal the decision of the Family Court to decline leave to appeal an interim parenting order.
breach of natural justice by the Family Court in relation to the without notice orders. The fifth cause of action alleges misrepresentation by Mr Charles Barker in relation to the without notice application.
Leave to amend pleading and adduce OT’s CYRAS notes
[45] On 25 November 2021, Ms Abdale, for Ms Harris, filed a memorandum seeking leave in relation to the supplementary amended statement of claim and to adduce a bundle of documents relied on in relation to that pleading. Some of the documents in the bundle constituted the record of the Family Court in relation to the 23 March 2020 orders.44 However, the bundle also contained documents that were not before the Family Court nor in evidence in this proceeding.45 These were four documents comprising OT records (CYRAS notes) of telephone calls in February 2020.
[46] As the leave sought in November 2021 had not been determined, Ms Abdale sought leave at the outset of the hearing. Ms Townsend, for the second and third defendants, did not oppose leave in relation to the supplementary pleading. It is unfortunate that the supplementary fourth and fifth causes of action relating to the initial without notice decision of 23 March 2020 were raised so late. The Family Court proceeding had already been the subject of on notice applications and hearings. Insofar as an application for judicial review of an initial without notice decision is necessary, it should be made without delay. Nevertheless, I granted leave by consent and I treat the pleadings dated 4 October 2021 and 25 November 2021 as merged into a further amended statement of claim.
[47] Ms Townsend opposed leave in relation to the CYRAS notes in the bundle on the basis they were of limited relevance and were selective, but counsel agreed that if I were to admit those CYRAS notes, I should see a complete set of the CYRAS notes for the relevant period.
44 Bundle of documents 1 to 9.
45 Bundle of documents 10 to 13.
[48] Ms Abdale also sought leave orally to file a sworn version of the unsworn August 2021 affidavit, which had not been sworn since the end of the 2021 COVID-19 lockdown. Otherwise, the only evidence filed in this proceeding was Ms Harris’ December 2020 affidavit. Ms Abdale withdrew a separate request to adduce the notes of evidence from the Family Court’s substantive hearing in relation to a final parenting order which had taken place over at least seven days earlier in 2022, with judgment reserved.
[49] I indicated that I would receive the complete set of the CYRAS notes for the relevant period de bene esse (that is, without determining their admissibility at the time). I also indicated that I would accept the unsworn affidavit on the same basis. I now deal with admissibility of these documents.
[50] I have reviewed the CYRAS notes adduced for the February 2020 period, which I will refer to as the February 2020 CYRAS notes. These notes commence with reference to the 4 February 2020 letter to OT referred to above. These notes indicate that:
(a)On 13 February 2020 the OT social worker heard directly from Mr Martin Barker.
(b)On 17 February 2020 the social worker spoke with Constable Harbrow (the police officer who had dealt with Mr Ridge’s protection order issue), who reported no concerns.
(c)On 19 February 2020 the social worker spoke with Kindicare’s care and protection officer for all Kindicare sites (including Lily’s kindergarten) who said the only thing that was not positive was “the parents not being nice to each other – [Lily] may get caught up in this”.
(d)On 26 February 2020 Mr Martin Barker emailed the OT social worker and his (then) lawyer saying he continued to experience abuse from Ms Harris and had lost all access to his daughter.
(e)On 27 February 2020 the kindergarten manager reported that she did not have any care and protection concerns for Lily and Mr Martin Barker followed up again with the OT social worker.
(f)On 27 February 2020, the social worker had another call with Mr Martin Barker where she explained that she had not received any information to suggest that Lily was not being well cared for by Ms Harris, and that if he had concerns for Lily’s safety he could contact the police and request a welfare check. The social worker suggested he ask his parents to file parenting orders if he were unable to do this himself.
(g)On 27 February 2020, the social worker also spoke with Mr Martin Barker’s (then) lawyer and said the matter appeared to be a custody issue rather than a care and protection one.
[51] In response to these notes, Ms Townsend provided subsequent CYRAS notes of interactions on 18 and 19 March 2020, which I will refer to as the March 2020 CYRAS notes. They recorded that on 18 March 2020 Police advised OT that:
(a)Police had conducted a search of Ms Harris’ address to recover an item stolen from a burglary. They recovered the stolen item and located a glass pipe most commonly used for methamphetamine in her bag and a point bag containing residue in the rubbish bin. However, no charges were being laid. Ms Harris was arrested for breach of protection order and would appear before the Court.
(b)Police were concerned for Lily’s welfare as Ms Harris was possibly doing drugs at home. Referring to Ms Harris’ relationship with Mr Ridge, Police said there were seven family harm episodes where Lily was exposed to the family harm. Mr Ridge had a protection order against Ms Harris which she breached and for which she was arrested.
(c)Ms Harris was struggling to pay her rent and had been using Mr Charles Barker’s credit card to make unauthorised transactions. He had advised Police that she would be asked to move out of her flat.
(d)Mr Martin Barker’s mother was happy to look after Lily and wanted Ms Harris to get help, believing she was not mentally capable of looking after Lily “right now”.
[52] These notes concluded with OT’s concerns that Lily had been exposed to her mother’s methamphetamine use and recommended an urgent safety assessment.
[53] The 19 March 2020 notes referred to a telephone conversation between Mr Martin Barker and Ms Stafford. The record of the conversation indicates that:
(a)Mr Martin Barker had received a report of concern from Police regarding Ms Harris being arrested;
(b)Lily was currently being looked after by Mr Martin Barker’s Mum, Dad (Mr Charles Barker) and Dad’s Partner, and they intended to apply to the Family Court for custody because they didn’t believe Ms Harris was fit to care for her whilst she was using drugs;
(c)Mr Martin Barker gave his (hearsay) account of Ms Harris’ arrest;
(d)Mr Charles Barker was going to submit an application for custody of Lily; and
(e)Ms Stafford explained that if the family were acting proactively and making decisions in Lily’s best interests, she did not believe OT needed to be involved.
[54] The CYRAS notes were adduced late and in an unorthodox manner. Neither the parties nor the Family Court had them in March 2020. However, I accept that in adducing the February CYRAS notes Ms Abdale was merely seeking to respond to an allegation by Ms Townsend that Ms Harris was being misleading and that the notes
are relevant to Ms Harris’ claim that the without notice application was misleading. There has been no suggestion the notes were not authentic. Indeed, they appear to be a reliable record of conversations in February 2020 in which OT did not express care and protection concerns for Lily. However, the subsequent March 2020 CYRAS notes provided by Ms Townsend appear equally reliable and indicate further developments before the without notice application was made. I admit both the February 2020 and March 2020 CYRAS notes in the interests of justice.
[55] I now turn to Ms Harris’ unsworn affidavit sent to the Court on 31 August 2021. It is of very limited relevance to the substantive grounds of judicial review since it was filed in support of Ms Harris’ application for interim relief (by way of varied interim parenting orders) which was ultimately not pursued, and it largely deals with matters arising in 2021. It attached various documents including Ms Harris’ unsworn August 2021 affidavit in the Family Court proceedings (in support of her opposition to varied parenting orders and relating to protection orders) and the Family Court decisions of 10 December 2020, 12/15 February 2021 and 6 July 2021. Ultimately, Ms Abdale only referred substantively to the attached decisions rather than the affidavit itself. Therefore, it is unnecessary to grant leave for the affidavit to be sworn.
[56] More generally, I note that, apart from the bundle in relation to the 23 March 2020 orders, there was unhelpfully no agreed bundle prepared for this proceeding containing the relevant record of the Family Court (though I did have the decisions attached to the unsworn affidavit as indicated). Furthermore, the only chronology for these proceedings was that filed by the second and third respondents, which was not agreed between the parties and which also unhelpfully referred to matters that were not in evidence.
Issues
[57] The substantive issues raised in the parties’ submissions may be examined as follows:
(a)whether the Family Court’s without notice decision of 23 March 2020 involved a breach of natural justice or was affected by the applicant’s misrepresentation;
(b)whether the Family Court’s decision of 10 December 2020 involved a breach of natural justice;
(c)whether the Family Court’s judgment dated 12 February 2021 (giving reasons for the orders of 10 December 2020) was unreasonable (in the judicial review sense); and
(d)whether the Family Court’s decision of 6 July 2021 was unreasonable (in the judicial review sense).
[58] Before addressing these issues and the post-hearing developments that have beset this proceeding, I refer to the applicable legal principles.
Applicable principles
[59] It is clear that judicial review by the High Court is available in relation to decisions made by the Family Court under the Act.46 The purpose of the judicial review jurisdiction in this context is to ensure that the Family Court Judges’ powers were exercised lawfully and in a manner consistent with the statutory scheme under which they operate.47
[60] Before turning to the pleaded grounds of judicial review in this proceeding, I make five inter-related observations. First, in proceedings under the Act, the welfare and best interests of the child in his or her particular circumstances must be the first and paramount consideration.48 This is commonly referred to as the paramountcy principle.
46 Newton v Family Court at Auckland [2022] NZCA 207, [2022] NZFLR 102 at [196].
47 At [197].
48 Care of Children Act 2004, s 4(1). I also have regard to the principles in s 5.
[61] Secondly, it is important to emphasise the distinction between judicial review and appeal. Appeals – at least general appeals – are concerned with whether the decision under appeal involved an error of fact or law. They require an assessment of the merits of the decision; whether it was right or wrong. The merits are assessed on the basis of the evidence before the first instance court and any further evidence admitted on appeal. Judicial review is fundamentally different. As French J said in Aorangi School Board of Trustees v Ministry of Education:49
… contrary to popular belief, judicial review is not an appeal. It is not about the Court considering the information afresh and coming to its own views. Judicial review is primarily limited to an examination of the process, and if successful usually results in the decision maker being required to start afresh, as opposed to quashing the decision for all time.
[62] In addition, judicial review is not usually an opportunity to adduce further contested evidence in an attempt to revisit the merits of the decision under review.
[63] Thirdly, the Family Court parenting order decisions in issue in this judicial review proceeding were all interlocutory, interim decisions made either without notice or following submissions only hearings. None involved oral evidence or cross- examination. As indicated, by the time of the (first) hearing in this proceeding, a substantive hearing with oral evidence had taken place in the Family Court, with judgment reserved.50
[64] The interlocutory decisions of the Family Court in issue here were not appealable as of right. Leave to appeal was required.51 The purpose of limiting rights to appeal such decisions is to ensure that the whole process is completed in the Family Court – a specialist jurisdiction – before there is a right of appeal.52
[65]Fourthly, some interlocutory decisions – especially those made without notice
– are susceptible to review by the Court making the original decision (here, the Family Court). As a general rule, the proper course for a litigant seeking to challenge a
49 Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 at [8].
50 I refer to the Family Court’s substantive merits decision following that hearing and a separate appeal proceeding in the next section of this judgment dealing with post-hearing developments.
51 Care of Children Act 2004, s 143(3).
52 See recently G S v Family Court at Manukau [2022] NZHC 555 at [9], citing Malone v Family Court at Auckland [2014] NZHC 1290 at [28]. See also BLH v MNL [2014] NZHC 194, [2014] BCL 176 at [25].
without notice order is to apply to the Judge who made the order, or if necessary to another Judge of the same Court, to discharge or vary it.53 While this Court has the jurisdiction to judicially review such interlocutory decisions as exercises of public power, the availability of other remedies, such as a discharge or variation by the original Court, may be relevant to whether this Court decides, in its discretion, to exercise its supervisory jurisdiction.54 Indeed, it is well established that the judicial review jurisdiction is to be exercised sparingly regarding Family Court matters.55
[66] Fifthly, even on a contested interlocutory application, bearing in mind the paramountcy principle, the Family Court’s function is limited to deciding what should be done pending a full investigation and hearing, as Hammond J observed in Fletcher v McMillian.56 In the vast majority of cases, it is preferable to advance the merit hearing timeously and encourage the parties to cooperate or at least live with the informal arrangements pending that hearing (if it is required).57 The Court is in no position, and it will rarely be appropriate, to have to resolve serious clashes of fact at the interlocutory stage.58 Indeed, as Hammond J observed, an adverse finding at the interlocutory stage of, for example, drug abuse may provoke a reaction in the parties which may itself be detrimental to the child’s interest.59
[67] I turn now to the pleaded grounds of judicial review in this proceeding: “breach of natural justice” and “unreasonableness”. The applicable principles are not in dispute.
53 Martin v Ryan [1990] 2 NZLR 209 (HC) at 221, citing WEA Records Ltd v Visions Channel 4 Ltd [1983] 2 All ER 589 (CA) at 593 per Sir John Donaldson MR. An example of the Family Court setting aside an interim parenting order for material non-disclosure is Parker v Heath [2018] NZFC 1952.
54 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [1] per Elias CJ and Arnold J.
55 G S v Family Court at Manukau [2022] NZHC 555 at [9], citing Malone v Family Court at Auckland [2014] NZHC 1290 at [53] where Ellis J acknowledged that except in “very clear-cut” cases of fundamental error, granting an application for judicial review of a decision under s 143(3) of the Care of Children Act 2004 would risk undermining the policy objectives Parliament had intended through that provision.
56 Fletcher v McMillan [1996] 2 NZLR 491 (HC) at 493.
57 At 493.
58 At 494.
59 At 494.
Breach of natural justice
[68] Breach of natural justice in the form of serious procedural impropriety is an established ground of judicial review. Natural justice normally requires that a Court give affected parties an opportunity to be heard. Without notice applications are a special limited exception to that principle provided for in the relevant Court Rules. Under the relevant Family Court Rules, an application without notice may be made only if the Act specifically permits it or the delay caused by making the application on notice would or might entail serious injury or undue hardship or risk to the personal safety of the applicant or any child of the applicant’s family, or both.60 Further, the applicant on all without notice applications must observe the utmost good faith. There must be full and frank disclosure of all material facts whether or not they assist the applicant.61 A lawyer’s certificate is mandatory.62
[69] Where a without notice application is brought, the Court is self-evidently being asked to make orders when only one party to the proceedings has been heard. There is therefore a risk that this will breach the principles of natural justice given statutory force in s 27 of the New Zealand Bill of Rights Act 1990. The rules relating to legislative exceptions authorising without notice applications must be complied with. As Fisher J said in Martin v Ryan, “such a departure from the fundamental requirements of natural justice will not be countenanced except in special circumstances which clearly fall within the legislative exception”.63 Martin v Ryan is frequently cited in relation to the pre-requisites for a without notice order in the Family Court. Fisher J said:64
60 Family Court Rules 2002, r 416H(a) and (b).
61 Failure to observe that duty, will normally (although not inevitably) result in discharge of the order. See Martin v Ryan [1990] 2 NZLR 209 (HC) at 233.
62 Rule 416HA. Ms Abdale initially submitted there was no certificate and therefore the Family Court should not have dealt with the application without notice. This issue had not previously been raised in the Family Court. However, before the end of the hearing Ms Abdale obtained from the Family Court and provided a certificate that had been filed.
63 Martin v Ryan [1990] 2 NZLR 209 (HC) at 226. The case concerned an application for judicial review to set aside a without notice Family Court order on the basis that (among other causes of action) it was obtained in breach of natural justice and due to the third defendant’s misrepresentations. The without notice Family Court order authorised the Registrar of the District Court to execute a sale and purchase agreement for the sale of a farm and other assets subject to a relationship property dispute on behalf of the plaintiff and third defendant.
64 At 226-227.
Without suggesting that they are inflexible or exhaustive there would normally seem to be five requirements before an ex parte order is justified:
(i)Clear case on the merits.65
(ii)Irreparable injury if application proceeds on notice.66
(iii)No delay by applicant.
(iv)Effect of order will be only brief and provisional.
(v)Strong grounds for overriding conventional requirements of natural justice.
[70] Where a without notice order has been made by the Family Court on the strength of material misrepresentations by the applicant, this Court may set the order aside by way of review.67 However, in doing so, it must bear in mind that such cases are rare and should be limited to instances where reliance on the relevant code of procedure (here, the Family Court Rules 2002) may be impossible or inappropriate.68
Unreasonableness
[71] The judicial review ground of “unreasonableness” or “irrationality” has been referred to as “Wednesbury unreasonableness”, from Associated Provincial Picture Houses Ltd v Wednesbury Corporation.69 As Lord Diplock explained in Council of Civil Service Unions v Minister for the Civil Service:70
It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his [or her] mind to the question to be decided could have arrived at it.
65 I address this requirement in the care of children context below.
66 Under the prevailing Rules referred to above, the relevant irreparable injury in this case is that the delay caused by making the application on notice would or might entail serious injury or undue hardship or risk to the personal safety of the child.
67 Martin v Ryan [1990] 2 NZLR 209 (HC) at 234.
68 At 234.69 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, [1947] 2 All ER 680.
70 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 408-411 per Lord Diplock, with the general support of Lord Roskill at 414-415. In New Zealand, see Webster v Auckland Harbour Board [1987] 2 NZLR 129 (CA); Wellington City Council v Woolworths (New Zealand) Ltd (No 2) [1996] 2 NZLR 537 (CA); and Waitakere City Council v Lovelock [1997] 2 NZLR 385 (CA).
[72]Context is key. As Wild J stated in Wolf v Minister of Immigration:71
Whether a reviewing Court considers a decision reasonable and therefore lawful, or unreasonable and therefore unlawful and invalid, depends on the nature of the decision: upon who made it; by what process; what the decision involves (ie its subject matter and the level of policy content in it) and the importance of the decision to those affected by it, in terms of its potential impact upon, or consequences for, them.
[73] The articulation of Wednesbury unreasonableness has been the subject of much discussion in various contexts, including as to the standard of review, which it is unnecessary to detail in this case. For present purposes, I simply note that the Court of Appeal recently said in C P Group Ltd v Auckland Council72 that Palmer J offered a useful formulation of the test for unreasonableness in Hu v Immigration and Protection Tribunal as follows:73
A decision may be unreasonable if it is not supported by any evidence, or if the evidence is inconsistent with or contradictory of it, or if the only reasonable conclusion contradicts the determination. The first two of these involve the adequacy of the evidential foundation of the decision. The last involves the chain of logical reasoning in the application of the law to the facts: if there is a material disconnect in the chain of logic from a fact or a legal proposition to a conclusion, a decision may be unreasonable and therefore unlawful.
[74] Finally, in relation to the discretion over remedies in the context of unreasonableness, in Martin v Ryan Fisher J said:74
Where the decision of a [Family Court] is alleged to be irrational, the preferred remedies are unquestionably the exercise of any rights of review or rehearing in the [Family Court] and/or appeal. For that reason the High Court would normally exercise its discretion against intervention by judicial review … If “irrationality” is established in the present case that fact can be taken into account in the exercise of the ultimate discretion over remedies.
71 Wolf v Minister of Immigration [2004] NZAR 414 (HC) at [47]; approved in Quake Outcasts v Minister of Canterbury Earthquake Recovery [2017] NZCA 332, [2017] 3 NZLR 486 at [73] and C P Group Ltd v Auckland Council [2021] NZCA 587 at [134].
72 C P Group Ltd v Auckland Council [2021] NZCA 587 at [135].
73 Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR 508 at [30]. In Martin v Ryan, Fisher J considered unreasonableness in his case in a similar way: whether there were “gap[s] in the chain of reasoning” and whether the Court under review had “traversed essential matters en route to [its] decision”: see Martin v Ryan [1990] 2 NZLR 209 (HC) at 225 and 230.
74 Martin v Ryan at 225.
Post-hearing developments
[75] As indicated, by the time of the (first) hearing in this proceeding, a substantive hearing in relation to a final parenting order had taken place in the Family Court, with judgment reserved. Ms Abdale acknowledged that that hearing had addressed the alleged misrepresentation/non-disclosure issue. Given that this Court is effectively being asked to address the same issue in this judicial review proceeding, I directed the parties to file a copy of the substantive decision of the Family Court following its delivery.
Substantive Family Court judgment
[76] I subsequently received the substantive reserved judgment of Judge K Muir in the Family Court at Auckland dated 20 May 2022.75 While keeping in mind the distinct role of this Court in relation to judicial review already mentioned, the unusual overlap with the issues in this proceeding means it is necessary to refer to some aspects of Judge Muir’s judgment.
[77] Although Judge Muir had to address other matters that had arisen since this proceeding was commenced, including an application by Ms Harris for a protection order against Mr Charles Barker and his wife under the Family Violence Act 2004 (FVA), the Judge said that Ms Harris’ serious allegations (that she had been “set up”), if proven, would mean that the orders in favour of the Barker family ought not to have been made and that urgent action would be required for Lily’s protection.76 Therefore, the Judge dealt with that issue in the context of Ms Harris’ application for FVA orders.
75 Barker v Harris [2022] NZFC 2178.
76 At [9]. The Judge had summarised the serious allegations relevant to the original without notice application as follows: “[Amanda Harris] says that she is the victim of a conspiracy or collusion by the [Barker] family and people who are associated with them or who are under their influence. She denies that she has ever abused drugs and she denies that she has ever had any mental health issues which might impact her ability to care for [Lily]. She says that she was “set up” at the time of [Lily’s] uplift as the result of a conspiracy, particularly between [Martin Barker] and [Kevin Ridge]. She says that her electronic devices and social media accounts have been “hacked” and that documents and posts on social media that appear to be from her are forgeries. [Amanda Harris] asserts that she is a victim of serious injustice” (at [5]).
[78] The Judge referred to Ms Harris’ affidavit of 15 March 2021 (referred to below in relation to the 6 July 2021 decision), noting that:77
… she claimed that since receiving the judgment of Judge Druce on 12 February 2021, where he found she had a propensity to lie, she had “…retrieved from Apple, text messages that tends to corroborate what I stated in my affidavit evidence which the Judge said were lies about the [Barker] family”. She did not then say that she had taken screenshots of the text messages at the time they were created. Her affidavit declared that it was the text messages rather than the photos of them that had been recovered and that she was attaching copies of them.
[79] The Judge found that documents relied on by Ms Harris as evidence that she was being “set up” at the time Lily was uplifted were forgeries,78 and that there was no credible evidence that the methamphetamine pipe and other evidence of drug use found in Ms Harris’ home was planted.79 The Judge also said that he found Ms Harris to be “an unreliable and unconvincing witness”.80
[80] Of particular relevance to the initial without notice application and orders, the Judge said:81
I also find that [Amanda Harris’] allegation that [Lily] was removed from her care based on deliberately false allegations of methamphetamine use and associated mental health problems is wrong. In the application in support of interim parenting orders filed on 19 March 2020, [Charles Barker] deposed that he was concerned that [Amanda Harris] was using or had become addicted to methamphetamine and potentially other substances. He gave evidence that [Amanda Harris] was arrested for breach of a protection order on 7 March 2020 and that [Lily] had been looked after by [Fay Barker] following that arrest. It was clear that he had good reason to believe she had a history of drug use. Although he was criticised in cross-examination for relying in part on hearsay, I find his belief was genuine and reasonably founded. [Amanda Harris] was again arrested on 18 March 2020 and at the time of his affidavit [Lily] was being cared for by [Fay Barker] and [Susan Barker] collaboratively.
[Martin Barker] had been informed by a police officer that [Amanda Harris] had been charged with burglary and that a methamphetamine pipe was found in her home together with a bag that tested positive for the drug. There was ample evidence for [Martin Barker] and [Charles Barker] to believe that [Amanda Harris] had used illegal drugs in the past despite her subsequent emphatic denials …
77 Barker v Harris [2022] NZFC 2178 at [45].
78 At [46].
79 At [67].
80 At [51].
81 At [66]-[67]. See also [130](a).
Ms Harris’ subsequent affidavits
[81] On 1 September 2022, Ms Harris emailed to the registry five unsworn affidavits purporting to be further evidence in this judicial review proceeding on a wide range of factual matters. These affidavits were marked as filed by Ms Harris herself, with a new email address for service.82 The registry contacted Ms Abdale, as counsel for Ms Harris, seeking clarification.
[82] By memorandum dated 19 September 2022, Ms Abdale sought leave to withdraw, for herself and for her instructing solicitor, Mr Simperingham. The memorandum indicated that the grounds for withdrawal included that Ms Harris had taken self-represented steps in the proceeding after the hearing without the knowledge of counsel by presenting a number of affidavits to the registry for filing.
[83] Subsequently, the registry sought further clarification as to whether these unsworn affidavits had been served on the defendants. Counsel for each of the defendants advised that the affidavits had not been served on them.
[84] It became evident that Ms Harris was also pursuing an appeal against the substantive Family Court judgment of Judge Muir and that at least one of these affidavits, in the same form but with a different proceeding number, together with other affidavits, had been filed in that separate appeal proceeding.83
[85] While I had directed the parties to file a copy of the substantive decision of the Family Court when it was delivered, I did not give leave for the provision of any further evidence or submissions following receipt of the Family Court’s decision or otherwise. This judicial review proceeding is not to be conflated with a separate appeal. If a development since the hearing were relevant to the application for judicial review, an application for leave to adduce further evidence and/or submissions would be required. Even in the case of further submissions after a hearing, leave is required and will only be granted in exceptional circumstances.84
82 I understand the registry has subsequently received sworn versions.
83 Harris v Barker HC Auckland CIV-2022-404-000943, 28 October 2022 (Minute (No. 4) of Powell J).
84 High Court Rules 2016, r 11.8A.
[86] In these circumstances, I made directions granting Ms Abdale and Mr Simperingham leave to withdraw in this judicial review proceeding; directing the registry not to accept Ms Harris’ affidavits for filing in this judicial review proceeding but providing that if Ms Harris considered that there were exceptional circumstances justifying any further evidence in this judicial review proceeding, that she was to file a memorandum explaining her position, following which I would convene a telephone conference.85
Further hearing
[87] On 4 November 2022, Ms Harris filed a memorandum seeking (among other things) leave to adduce the further evidence. I convened a conference by Virtual Meeting Room on 9 November 2022. During that hearing, the parties agreed that I should determine the application for further evidence on the papers as part of my substantive judicial review decision.86
[88] In relation to the range of matters covered in the further affidavits, Ms Harris initially said that none of the information she sought to adduce had been produced to the Family Court although it had been provided to her former counsel, and she submitted that the further evidence showed that the Family Court’s without notice order of 23 March 2020 should never have been made. Ultimately, however, Ms Harris said her focus was on adducing further evidence indicating that the search of her home which allegedly found drug paraphernalia was illegal and that the “point bag” was never tested, plus evidence relating to her hair follicle drug tests. She also referred to a more recent report of Dr Hilary Longhurst.
[89] As indicated, following a hearing, leave is required to adduce further evidence and/or submissions. I do not consider there are exceptional circumstances justifying admission of further evidence, for three reasons. First, most if not all of the evidence is irrelevant to the specific grounds of judicial review even if it could be of potential relevance to an appeal on the merits of Judge Muir’s decision. Secondly, even if the
85 Harris v The Family Court at Auckland HC Auckland CIV-2020-404-2533, 31 October 2022 (Minute of Gault J).
86 Harris v The Family Court at Auckland HC Auckland CIV-2020-404-2533, 9 November 2022 (Minute of Gault J).
evidence were relevant in this judicial review proceeding, much of it is disputed and/or was considered and rejected by the Family Court. Thirdly, I note the conventional requirements for adducing further evidence on appeal – before an appeal hearing – are that the further evidence must be fresh, credible and cogent, and that evidence is not regarded as fresh if it could with reasonable diligence have been produced at the trial.87 Those requirements assist by analogy when considering whether leave should be granted to adduce further evidence after the hearing in this proceeding. I consider that these subsequent affidavits of Ms Harris could and should have been produced before the hearing. Therefore, they do not qualify as fresh evidence that should be admitted after the hearing.
[90] Attempting to adduce these subsequent affidavits in this judicial review proceeding is misconceived and conflates judicial review with the appeal of Judge Muir’s substantive decision that was proceeding in this Court at the same time.88
[91] For these reasons, I decline to admit the further affidavits filed after the hearing.
Ms Harris’ further filing
[92] Notwithstanding the further hearing on 9 November 2022, on 23 November 2022, Ms Harris filed yet another document entitled “Seek Leave to Adduce the Evidence and Proof of Hacking of My Apple ID from October 2019 through to November 2022 and the Conversations Proving the Collusion and Planned Events”. In that document, Ms Harris referred (in general terms) to evidence that she says has been found to prove that her Apple ID was used by the Barker family and Mr Ridge. She said the information was being reviewed by a forensic IT specialist for a report and that the evidence is crucial to the judicial review and appeal. She requested an urgent hearing for this evidence to be produced. However, this further informal application to adduce new evidence after the hearing did not include the proposed evidence.
87 Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 192; affirmed in Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 1) [2006] NZSC 59, [2007] 2 NZLR 1 at [6].
88 That appeal was later struck out when Ms Harris did not pay security for costs: Harris v Barker
HC Auckland CIV-2022-404-000943, 12 December 2022 (Minute (No.6) of Powell J).
[93] For similar reasons, I decline to grant leave to adduce such further proposed evidence. Further allegations of hacking and collusion between the Barker family and Mr Ridge do not assist in relation to the specific grounds of this judicial review. This judicial review proceeding is not a separate opportunity to relitigate allegations that have been addressed and rejected in the Family Court, particularly in the substantive judgment of Judge Muir. Any IT report relevant to such allegations should have been adduced in the Family Court proceeding. I decline to reopen the hearing in this proceeding to address an IT report even if one were available. The determination of this judicial review proceeding should not be further delayed.
[94] I now turn to the substantive grounds of review. Like Ms Abdale, I address the causes of action in the chronological order of the Family Court decisions to which they relate. This means I address first the 23 March 2020 decision (the fourth and fifth causes of action); secondly, the 10 December 2020 and 12 February 2021 decisions (the first and second causes of action); and thirdly, the 6 July 2021 decision (the third cause of action).
Family Court’s 23 March 2020 decision (fourth and fifth causes of action)
[95] Ms Abdale’s submissions focused on the Family Court’s initial without notice decision of Judge Duggan dated 23 March 2020. She submitted this decision was void ab initio (that it had no legal effect from its inception) and that accordingly the Family Court’s subsequent decisions were also void ab initio.
[96] I deal with the fourth and fifth causes of action together. As indicated, the fourth cause of action alleges breach of natural justice by the Family Court in relation to the initial without notice orders whereas the fifth cause of action alleges misrepresentation by Mr Charles Barker in relation to the initial without notice application. The misrepresentation cause of action is not a conventional judicial review claim. However, misrepresentation / lack of full disclosure needs to be addressed because it supports the breach of natural justice claim and because, as already indicated, in Martin v Ryan Fisher J identified it as a possible basis for setting aside a Family Court decision by way of judicial review, though admittedly in rare
cases where reliance on the Family Court’s rules was impossible or inappropriate.89 Fisher J observed that the conduct and understanding of persons other than the decision-maker, such as the applicant, could, in some cases, provide a ground for judicial review regardless of whether, on the material as presented to the decision- maker, the decision might have been unimpeachable.90 I do not understand Martin v Ryan to say that misrepresentation / non-disclosure by the applicant itself gives rise to a breach of natural justice by the judge. Rather, in rare cases misrepresentation may itself be a ground of review.91
[97] Breach of natural justice and the other principal grounds of “unreasonableness” (“irrationality”) and “illegality” are not mutually exclusive. As in Martin v Ryan, one might categorise the complaint that the Family Court Judge ought not to have dealt with the initial application on a without notice basis as an allegation of: (i) “illegality” in the sense that the circumstances did not fall within the narrow requirements for a without notice application under the relevant Court Rules, (ii) “unreasonableness” / “irrationality” on the basis that the decision to proceed in that way defied logic (or was unsupported by the evidence), or (iii) “procedural impropriety” on the basis that neither the Court’s rules nor natural justice were observed.92
[98] In relation to breach of natural justice, Ms Abdale submitted that none of the five requirements set out in Martin v Ryan were satisfied in this case. She submitted that much of the evidence in support was hearsay. She also submitted that Mr Charles Barker’s affidavit misrepresented the allegations of drug use and Ms Harris’ “unravelling” mental health as reasons for his imminent concern for Lily’s safety when his son, Mr Martin Barker, and his lawyer (and presumably he himself) knew on 27 February 2020 that OT had concluded their investigation and had no concerns for Lily’s safety in Ms Harris’ care. Ms Abdale submitted that Mr Charles Barker’s omissions amounted to misrepresentation. Furthermore, she also submitted that the evidence deceived the Judge given the Judge’s reference to the application being supported by the Police and OT. Although not pleaded, Ms Abdale also submitted the absence of admissible evidence rendered this decision “irrational”.
89 Martin v Ryan [1990] 2 NZLR 209 (HC) at 234.
90 At 224.
91 At 234.
92 At 224.
[99]Ms Abdale referred particularly to the following evidence:
(a)the affidavit of Ms Harris dated 23 December 2020, which includes hair follicle drug tests to show that she was not using drugs; states that no earlier concerns had been raised about her mental health or ability to parent Lily; and attaches affidavits from a close neighbour confirming her parenting ability; and
(b)the February 2020 CYRAS notes indicating no OT or Police concern for Lily even though OT’s investigation followed allegations from Mr Martin Barker’s (then) barrister about drug use and mental health issues.
[100] Ms Abdale also relied on Fletcher v McMillan as another case involving allegations of drug use and a Family Court decision moving primary care of a child without a merits hearing, where the High Court allowed an (interlocutory) appeal after finding there was no substance to the allegations of drug use.93 Ms Abdale submitted that Ms Harris’ evidence of negative drug tests, and the omitted evidence of the OT position indicated in the records, highlighted the serious error in making without notice orders without satisfying all five criteria justifying moving primary care of a child. She submitted the subsequent Family Court decisions in this case indicated that there were serious clashes of fact, and that the interlocutory decision as to drug abuse provoked a reaction from the parties, much like that referred to in Fletcher v McMillan, which may itself be detrimental to the child’s interest.94
[101] Ms Abdale also submitted that there were procedural irregularities or improprieties: that the without notice application was originally filed on 18 March 2020 but rejected by the Family Court registry, that it was then filed the following day with an amended affidavit, and with further documents later filed, before the Family Court finally determined the application on 23 March 2020. She submitted this delayed process indicated there was no risk of irreparable injury/risk of harm/safety to the child if the applications proceeded on notice. She also submitted that the effect of
93 Fletcher v McMillan [1996] 2 NZLR 491 (HC).
94 At 494.
the interim orders was not brief. She submitted the real reason for the applicant’s urgency was the imminent COVID-19 lockdown and that the Family Court should have taken into account the expected impact of the lockdown on Court operations when considering the applicable legal principles. She did not pursue a suggestion that the Family Court orders had not been served on Ms Harris.
[102] The starting point is that Lily had been in Ms Harris’ day-to-day care from when her parents separated in 2017 until March 2020. A without notice application for the uplift of a child should be exceptional, as indicated. It was only permitted if the delay caused by making the application on notice would or might entail serious injury or undue hardship or risk to Lily’s personal safety.
[103] Before dealing with the appropriateness of the without notice application and decision, I refer to the Court’s approach to the admissibility of hearsay evidence. I accept that significant elements of Mr Charles Barker’s affidavit in support, including that of Ms Harris’ alleged drug use and arrests, were hearsay (and indeed that some of it was hearsay within hearsay). I also accept that the hearsay in the 4 February 2020 letter of counsel, that Mr Martin Barker “was told that methamphetamine dealers have been seen at [Ms Harris’] home”, was inconsistent with his letter supporting the affidavit which said that Mr Ridge told him that “he thought there were drug dealers at her house” (emphasis added).
[104] Ms Abdale acknowledged s 12A(4) of the Family Court Act 1980 relating to the admissibility of evidence but submitted that the hearsay evidence on the essential issue of Ms Harris’ drug use and how it impacted on Lily’s safety did not pass that test. She also submitted that the limited direct evidence supporting Mr Charles Barker’s application did not warrant Lily’s uplift.
[105]Section 12A(4) provides:
The effect of s 5(3) of the Evidence Act 2006 is that that Act applies to the proceeding. However, the court hearing the proceeding may receive any evidence, whether or not admissible under the Evidence Act 2006, that the court considers may assist it to determine the proceeding.
[106] Section 18 of the Evidence Act 2006 relevantly provides that a hearsay statement is admissible if the circumstances relating to the statement provide reasonable assurance that the statement is reliable and the Judge considers that undue delay would be caused if the maker of the statement were required to be a witness. That has particular application in the context of an urgent interlocutory application like this one. Hence, the admissibility of Mr Charles Barker’s hearsay evidence, like the appropriateness of proceeding without notice, depends in part on issues of urgency and delay.
[107] Turning to the without notice application, Ms Harris disputes the evidence filed in support. She has already disputed much of it in the subsequent Family Court hearings. However, I deal first with the February 2020 CYRAS notes admitted in this proceeding. They indicate that OT appreciated that Mr Martin Barker’s concerns largely came from Mr Ridge. They also indicate that OT were aware of the allegations but, having investigated, concluded that OT had no care and protection concerns for Lily. OT suggested to Mr Martin Barker in late February 2020 that he or his family seek parenting orders. As Ms Abdale noted, the February 2020 CYRAS notes indicated that OT suggested parenting orders for access, rather than uplift. If the Barker family had sought Court orders at that time, there would have been no real urgency and the application could and should have been made on notice.
[108] However, I accept that Ms Harris’ subsequent arrests on 7 and 18 March 2020 and the Police’s reference to drug paraphernalia likely increased the Barker family’s concern about Lily’s care, prompting the without notice application. Three points arise: the relevance of Ms Harris’ arrest; Mr Charles Barker’s statements about the advice (support) of the Police and OT; and the allegations that Ms Harris was using drugs.
[109] First, as Ms Abdale submitted, Ms Harris’ arrest was in relation to Mr Ridge’s complaints. Therefore, it should not necessarily have created the same care and protection concerns justifying an uplift as the drug and mental health allegations. I note that the Judge’s reasons did not refer to the arrests.
[110] Secondly, in relation to Mr Charles Barker’s statements about the advice (support) of the Police and OT, the February 2020 CYRAS notes contradict the concern about Lily’s care and are consistent with Ms Harris’ complaint that the application was not supported by the Police and OT. However, Ms Harris’ complaint assumes that the position as stated in the February 2020 CYRAS notes still applied when the without notice application was filed on 19 March 2020 whereas the March 2020 CYRAS notes indicate that there were further developments. The March 2020 CYRAS notes do not explicitly corroborate Mr Charles Barker’s 19 March 2020 statements that Ms Stafford confirmed he should apply for an urgent custody order and that the arresting police officer also urged him to apply for a custody order as soon as possible. However, they do record that Ms Stafford was told of Ms Harris’ arrest and that Mr Charles Barker was going to submit an application for custody of Lily and that she told Mr Martin Barker that as long as the family were acting proactively and making decisions in Lily’s best interests, she did not believe that OT needed to be involved. This is at least consistent with the Judge’s understanding that the application was supported by the Police and OT. I am not in a position to conclude that Mr Charles Barker’s evidence that he had direct conversations with Ms Stafford and the arresting police officer was incorrect. Taken together, the CYRAS notes and other evidence do not substantiate the complaint that Mr Charles Barker misrepresented that Police and OT supported the application.
[111] Thirdly, the evidence of drug use was hearsay. It would have been preferable for the application to include direct evidence at least in relation to the essential issue of Ms Harris’ drug use impacting on Lily’s safety. However, I consider the hearsay evidence was admissible in the circumstances. The reported statements from the Police were reliable and, in the context of focusing on Lily’s welfare, there was urgency. The application was accompanied by a barrister’s r 416HA certificate.
[112] Mr Charles Barker’s affidavit should have been more explicit about the outcome of the OT investigation in late February 2020. In particular, OT’s advice at that time that they had insufficient information to act ought to have been disclosed. Even so, as Ms Townsend submitted, the Family Court would have appreciated from the evidence that if OT had care and protection concerns, it would have taken steps itself rather than suggested the family seek a parenting order. OT’s position evidently
changed from seeking access to seeking a custody order by 18 or 19 March 2020 as a result of the developments. As Judge Muir said, it is likely the Family Court would still have been satisfied that a without notice order should be made.95
[113] I do not consider the filing of the further documents dated 22 and 23 March 2020 before the Judge granted the orders (on Monday 23 March 2020 after the weekend) undermined the requisite urgency for proceeding without notice. The developing COVID-19 situation may have contributed to the sense of urgency.
[114] In any event, the Family Court Judge was required to make an assessment as to Lily’s best interests on the basis of the evidence filed. This evidence alleged that Ms Harris was using methamphetamine, that she was suffering mental health problems and that she was unable to care for Lily. Initially, the Judge was required to make an assessment as to whether the matter should proceed on a without notice basis in the first instance, before moving on to consider whether the orders sought should be made.
[115] The evidence – albeit largely hearsay – indicated a risk to Lily’s personal safety. On the basis of the evidence filed, I do not consider that the Judge erred by dealing with the application on a without notice basis in the first instance. The Judge was entitled to have regard to the hearsay evidence when deciding to do so. I am unpersuaded that the pre-conditions for a without notice order described in Martin v Ryan and r 416H were not made out and that the Judge breached natural justice as a result. Martin v Ryan was not a care of children case and Fisher J’s reference to a clear case on the merits needs to be seen in that context, whereas in the care of children context the paramountcy principle applies. Viewed through that lens, the Judge was entitled to conclude that the delay caused by proceeding on notice might risk Lily’s safety.
[116] Moving to consider the orders made, I do not conclude that the decision was based on a misrepresentation by the applicant, Mr Charles Barker. Unlike in Martin v Ryan, I am not in a position to determine in this judicial review proceeding that Mr Charles Barker’s affidavit of 19 March 2020 misrepresented or failed to disclose the true position. I have already indicated that the evidence in this proceeding does
95 Barker v Harris [2021] NZFC 2178 at [130](a).
not support the complaint that the evidence in support of the Family Court application misrepresented that the Police and OT supported the application. Although Ms Harris disputes the allegations of drug use, I cannot conclude on the basis of the evidence in this judicial review proceeding that Mr Charles Barker’s affidavit of 19 March 2020 misrepresented what he had been told. Even after a hearing where the witnesses were cross-examined, Judge Muir did not reach such a conclusion. I have referred to his conclusion above at [80].
[117] For completeness, I also refer to Ms Abdale’s unpleaded allegation that the interim parenting order was irrational. Whether applying the traditional concept of Wednesbury unreasonableness or the more recent formulation in Hu v Immigration and Protection Tribunal, I do not consider that the interim parenting order was unreasonable or irrational. Keeping in mind the paramountcy principle central to the Family Court Judge’s decision-making, the Judge was entitled to have regard to the hearsay evidence when considering the merits of the application (as well as when deciding to proceed without notice). The Judge ’s reasons and decision were available on the evidence that indicated that Ms Harris appeared to be using methamphetamine, was acting aggressively and erratically, was being held in Police custody and that Police and OT supported a custody order. The decision was supported by the evidence and one which a reasonable Family Court judge could have reached.
[118] It is also necessary to deal with Ms Abdale’s reliance on Fletcher v McMillan. That case involved an appeal against an interim custody order given by the Family Court, in which custody was given to the respondent due to the risk that the appellant’s drug abuse posed to the child. Hammond J allowed the appeal and gave interim custody back to the appellant, finding that there was no substance in the appellant’s alleged drug abuse, no risk posed by the appellant to the child, and that it was actually the respondent’s behaviour which posed a risk.96 That decision differs from this case in at least three material respects. First, that was an appeal, not a judicial review. Secondly, the initial Family Court decision followed a contested (submissions only) hearing after the Family Court had declined to deal with the interim custody
96 Fletcher v McMillian [1996] 2 NZLR 491 (HC). The judgment was reported only on the principles applicable to interim custody orders but contained a headnote which summarised Hammond J’s key factual findings.
application on a without notice basis. Thirdly, on appeal, the High Court heard viva voce evidence with cross-examination.
[119] I accept the developing COVID-19 situation meant there was a risk that the impending COVID-19 lockdown would cause delay before the Court could convene an on notice hearing and that such delay would be of particular relevance given the young child’s sense of time.97 That was a relevant consideration. I also accept that the interim orders in this case ultimately had effect for over two years and that for a combination of unfortunate reasons Ms Harris had limited contact with Lily during that period. However, the intended effect of the without notice orders would have been much more temporary. The Act provides for applications to vary or discharge parenting orders.98 Under the Family Court Rules 2002, each person against whom an order is made on a without notice application may, at any time, make an interlocutory application to a Judge to have the order varied or rescinded.99 The timeline following the without notice orders in this case is that Ms Harris applied for a parenting order on 9 April 2020, also on a without notice basis. The Family Court directed that the application proceed on notice. An urgent half day hearing was scheduled for early July 2020. However, as indicated, on 2 July 2020, that hearing was vacated by consent and an interim parenting order was made by consent providing for Lily’s day-to-day care to continue with Mr Charles Barker and for her to have a minimum of eight hours supervised contact per fortnight with Ms Harris. The matter then proceeded to the interim hearing on 10 December 2020.
[120] For these reasons, I conclude that the original without notice orders of the Family Court dated 23 March 2020 were lawful and not void ab initio as alleged.100
97 Care of Children Act 2004, s 4(2)(a)(i).
98 Section 56.
99 Rule 34(c).
100 In any event, I consider the orders would only be void if this Court quashed them on review, not
void ab initio.
Family Court’s 10 December 2020 and 12 February 2021 decisions (first and second causes of action)
[121] Aside from challenging these decisions of Judge Druce on the basis that the original orders were void, Ms Abdale submitted that the Family Court decision of 10 December 2020 breached Ms Harris’ right to natural justice (first cause of action) and that the Judge’s February 2021 reasons decision was unreasonable, unfair and unlawful (second cause of action). In relation to breach of natural justice, Ms Abdale submitted the right to natural justice includes a fair trial with evidence tested and that, while Ms Harris’ then counsel agreed to proceed by way of a submissions only hearing, the Judge made serious factual findings including that Ms Harris had a propensity to lie which the Judge could not make without having the evidence tested. Ms Abdale submitted the findings gave too much weight to the untested and hearsay evidence of the Barkers, and were irrational. She also submitted that Ms Harris’ evidence, including of clear drug tests, was not accepted by the second and third defendants and was not given proper weight by the Judge.
[122] Ms Abdale did not take issue with the legal test applied by the Judge given the difficulty of making safety findings in accordance with ss 5(a) and 5A101 of the Act without the evidence being tested by cross-examination, namely whether there was a clear case beyond reasonable argument that Ms Harris posed no risk to Lily’s safety (physical and psychological). That high threshold at the interim stage when evidence is not tested reflects the paramountcy principle.
[123] Ms Harris agreed to a submissions only hearing. Proceeding in that way did not involve a breach of natural justice. The remaining breach of natural justice submissions concerning the Judge’s findings are more properly considered in terms of unreasonableness / irrationality.
[124] As indicated, I was not provided with the complete Family Court record. Therefore, as Ms Abdale acknowledged, her essential submission was that I can conclude on a reading of the Judge’s February 2021 reasons that the factual findings
101 Given there was a protection order in place.
were irrational in the judicial review sense given that there was no testing of the evidence.
[125] Having regard to the context in which the decision and reasons were issued following a submissions only hearing, the evidence before the Judge and the Judge’s reasoning, I cannot conclude the Judge’s findings were irrational or unreasonable, whichever test is applied. I say this for three reasons.
[126] First, the Judge recognised that the evidence had not been tested and his conclusions reflected that. In particular, the Judge’s reference to Ms Harris having “a propensity to depart from the truth” needs to be read in context. That statement was made in relation to her mental health, where the Judge referred to her “extraordinary allegations against the [Barker] family”, and said there were numerous examples of her making similar serious allegations.102 The Judge said that “(on balance) the weight of evidence as it stands, albeit yet to be tested, indicates that [Ms Harris] has a propensity to depart from the truth in an attempt to gain advantage and or hit back psychologically when others “hold their ground” against whatever she may want at the time”.103 The Judge’s observation was explicitly caveated.
[127] Secondly, this observation, based on Ms Harris’ serious allegations against the Barker family, was only one aspect leading to the Judge’s conclusion that he was not satisfied that Ms Harris’ mental health and related cognitive functioning posed no further risk to Lily’s psychological welfare and safety. Another aspect was the expert psychiatric opinion of Dr Daniels and his concern that Ms Harris’ disorder could adversely impact on her capacity to engage in consistently supportive adult relationships, and the risk this would create to Lily’s relationships with her wider family.
[128] Thirdly, this and the Judge’s other conclusions were based in significant part on adverse developments since the 23 March 2020 orders which I am not in a position to second-guess. Overall, the Judge concluded that he was not satisfied there was a clear and compelling case, beyond reasonable argument to the contrary, that the safety
102 Barker v Harris [2021] NZFC 1189 at [31]; see above at [31], n 25.
103 At [31].
concerns that underpinned the Court’s earlier decision to remove Lily from her mother’s care had resolved and that it was in Lily’s best interests to grant the mother’s application for her return to her mother’s day-to-day care.
Family Court’s 6 July 2021 decision (third cause of action)
[129] Aside from also challenging Judge Druce’s decision dated 6 July 2021 on the basis that the original without notice orders were void, Ms Abdale submitted that this decision was unreasonable, unfair and unlawful (third cause of action). She submitted that the Judge failed to take into account Ms Harris’ affidavit corroborating her position following access to her Apple account.
[130] Ms Townsend submitted the Judge referred in detail to Ms Harris’ affidavit and its annexures.104 Here too, the lack of an agreed bundle meant that counsel were at cross-purposes. Ms Abdale was referring to an affidavit in support of 15 March 2021 whereas the Judge referred to Ms Harris’ affidavit of 24 March 2021 which Ms Abdale said was filed in reply. Ms Townsend and I did not have the affidavit of 15 March 2021. Ms Abdale provided a 15 March 2021 affidavit after the hearing.
[131] I accept that in the decision of 6 July 2021 the Judge appears to refer only to Ms Harris’ affidavit of 24 March 2021 and not to an affidavit of 15 March 2021. However, in the absence of the Family Court record, it is unclear whether the 15 March 2021 affidavit provided to me after the hearing was before Judge Druce.105 The copy provided by Ms Abdale is not stamped by the Family Court. Since Ms Townsend did not have it, it seems likely it was not served on the respondents or addressed in evidence by them. I am not in a position to conclude that the 15 March 2021 affidavit was before the Judge. Therefore, I am unable to conclude that the Judge acted irrationally or unlawfully by failing to consider it.
[132] Even assuming the 15 March 2021 affidavit was available to the Judge but overlooked, this Court on judicial review is not well placed to assess its significance in relation to the application for recall of the earlier decision. It would have been
104 Barker v Harris [2021] NZFC 6404 at [2]-[4].
105 It must have been available to Judge Muir at the 2022 substantive hearing since it is referred to in that judgment.
preferable to raise this issue with the Family Court Judge at the time by seeking recall of the 6 July 2021 decision. The thrust of the 15 March 2021 affidavit, and no doubt the 24 March 2021 affidavit referred to by the Judge but not provided to me, is to attack what Ms Harris characterises as the Judge’s finding that she had a propensity to lie by seeking to substantiate the allegations of hacking by Mr Ridge and collusion with Mr Martin Barker. While the Judge might have recalled his 6 July 2021 decision if he had overlooked the 15 March 2021 affidavit, I doubt that, in a submissions only context, would have led the Judge to recall his earlier 10 December 2020 decision and reverse the interim parenting orders given the combination of reasons for that decision referred to above. I also doubt it would have affected his decision to decline leave to appeal. Further delaying the substantive hearing was a strong factor in that decision, and a reasonable one.
[133] In the meantime, the serious allegations have been tested in the substantive Family Court hearing and rejected by Judge Muir. Even if I could conclude that a ground of review was made out in relation to the Family Court Judge’s failure to consider the affidavit of 15 March 2021 and even if a declaration were appropriate, I would have declined to set aside the 6 July 2021 decision as sought, in the exercise of this Court’s discretion, given the affidavit was addressed in the subsequent substantive Family Court decision.
Conclusion
[134] For these reasons, I conclude that Ms Harris has not made out her judicial review claims. The application for judicial review is dismissed.
Costs
[135] Having succeeded in this proceeding, the second and third defendants would ordinarily be entitled to costs except insofar as Ms Harris was legally aided. Ms Abdale said that Ms Harris had an interim grant of 10 hours. I doubt that affects scale costs which I am inclined to award on a 2B basis (one set only since the second and third defendants were jointly represented), with disbursements as fixed by the Registrar. However, I reserve leave for the parties to file brief memoranda on costs
(not exceeding three pages) within 25 working days if costs cannot be agreed, and I will then determine costs on the papers.
Gault J
Parties / Solicitors / Counsel:
The Plaintiff
Ms S Abdale, Barrister, AucklandMr A M Simperingham (plaintiff’s instructing solicitor), Woodward Chrisp, Gisborne Mr P Gunn and Ms L Dittrich (for the first respondent), Crown Law, Wellington
Ms CEA Townsend, Barrister, Auckland
Mr F Milne (second and third respondents’ instructing solicitor), Urlich Milne, Auckland
0
8
1