Hirstich v Kahotea HC Auckland Ap136-Sw01

[2001] NZHC 1216

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY AP136-SW01

IN THE MATTER of the Guardianship Act 1968

BETWEEN MAVIS JILLIAN HIRSTICH
Appellant

AND SELWYN KUPA KAHOTEA
Respondent

Hearing: 5 December 2001

Counsel: L J Kearns for the Appellant
Respondent in person
P Recordon for the children

Judgment: 10 December 2001

RESERVED JUDGMENT OF PATERSON J

[1] The parties, Ms Hirstich and Mr Kahotea, married in 1988 and separated in 1996. They have two children aged 13 and 10 years respectively, who until now have been mainly in the care of Ms Hirstich but in respect of whom Mr Kahotea has had regular access rights. Mr Kahotea has now applied for custody of the children. Ms Hirstich opposes the application which was originally due for hearing before Family Court Judge Adams next week. The hearing has been postponed until January but will need to be resolved in that month so that the children’s schooling arrangements can be finalised. Ms Hirstich applied to Judge Adams to disqualify himself from hearing the case. In a reserved judgment issued on 27 November last, Judge Adams “decided, after serious reflection, that I ought to complete my duty in this matter and hear the custody case. . .”. Ms Hirstich, with the leave of the Family Court, appeals that decision.

Counsel for children

[2] Mr Recordon is counsel for the children in the Family Court hearing. He has been involved with the children for some time and knows the background of both the current proceeding and the family situation. Ms Hirstich’s counsel opposed his appearance on this appeal. In view of the background to this matter, it was important, in my view, that the children were represented at the hearing. I therefore made an order appointing Mr Recordon as counsel for the children in this hearing.

Background

[3] Although I do not have all the details, it is apparent from the comments of counsel that there has been considerable litigation in respect of the children over the last five years. In an affidavit sworn in March of this year, Mr Kahotea noted that the parties had had 11 mediations through the Family Court and privately on various matters, and had been before the Court on various access and matrimonial property matters 13 times. Since the parties separated, the children have resided primarily with Ms Hirstich. From July 1996 until March 1997 Mr Kahotea’s access to the children was supervised. From July 1997 until November 1997, unsupervised weekend access occurred fortnightly in Auckland. I was not advised as to what happened between November 1997 and February 2000 but from February 2000 until August 2000, Mr Kahotea did not see the children. From August 2000, he had monthly access to the children in Whangarei.

[4] On 15 December 2000, Mr Kahotea made an ex parte application for a variation of the then access order on the basis that he wished all access to take place in Whangarei and not in Auckland. It was necessary for him to convert that application to an inter partes application which was filed and served in February 2001. A judicial conference was held before Judge Adams on 20 March 2001, at which the Judge made various timetable orders relating to the filing of affidavits by Mr Kahotea and Ms Hirstich, and ordered that Mr Kahotea’s application for a variation of the access arrangements be set down for a one hour hearing, by submissions on the papers (subject to directions of the trial Judge after hearing any submissions seeking to cross-examine) in early May 2001. He noted that if possible, the hearing could be before him. There were other statements in the directions minute upon which Ms Hirstich relies in the present application and they will be referred to later in this judgment.

[5] In accordance with the Judge’s directions, the parties filed affidavits. Mr Kahotea in his affidavit referred to the application as “a fine tuning exercise.” Ms Hirstich then filed a detailed affidavit in which she raised her concerns. I was advised from the Bar that counsel for Ms Hirstich then wrote to the Court seeking an adjournment to allow sufficient time for cross-examination. This letter was not produced in evidence. On 24 April 2001, the Judge issued a minute in the following terms:

“On 24th April 2001 the above matter was placed before J G Adams, Family Court Judge, who endorsed the file with the following minute:

“This was discussed on 20th March 2001, and I see no need to re-visit this minor issue. It should be managed within one hour. One hour remains.”

Kindly note that the above matter has been set down for hearing on the [ ] day of [ ] 2001 at [ ] am at the Papakura District Court.”

This minute was, in part, relied upon by Ms Hirstich in her application.

[6] The hearing of Mr Kahotea’s application proceeded on 23 May 2001 and a judgment was given two days later. Mr Kahotea’s application had sought the following variations:

(a) he be entitled to exercise all access rights in Whangarei;

(b) removal of the prohibition preventing him from consuming alcohol four hours prior to driving;

(c) the adoption of a rigid regime of access for school holidays and Christmas;

(d) Ms Hirstich to attend to half the cost of transporting.

At the hearing, the appellant’s counsel was allowed to cross-examine for one half hour but her application for further time for cross-examination was declined.

[7] In his judgment, the Judge rejected several concerns raised by Ms Hirstich and granted the application allowing access to be exercised in Whangarei and the proposals in relation to Christmas and holiday access. Mr Kahotea was not successful in having deleted the prohibition against alcohol consumption, or in having Ms Hirstich attend to half the transport costs.

[8] The application for custody which is shortly to be heard was filed on 17 July 2001. Unfortunately, Ms Hirstich was not advised of that application or of other Court steps when she should have been so advised. On 19 July 2001, Ms Hirstich learnt from the Deputy Principal at the school that one of her children (A) attended that A was threatening suicide by shooting in front of her father. Ms Hirstich, through her solicitor, sought assurances and undertakings from Mr Kahotea that he would remove weaponry from his house prior to access commencing in Whangarei the following weekend. When he did not give such undertakings, Ms Hirstich filed an ex parte application to suspend access for the weekend commencing 27 July 2001. This application was filed on 26 July 2001 and Ms Hirstich’s counsel requested the Court staff to deal with it urgently. Late on 27 July 2001, the Judge issued a minute which was copied to the parties. In it, he noted “the evidence suggesting A might suicide is insufficient to raise my concern to the point that access should be suspended.” He therefore declined the ex parte application but noted it could proceed on three days notice to Mr Kahotea and Mr Recordon. There are other aspects of this minute which will be referred to later as Ms Hirstich relies upon them in her allegation of apparent bias. It was also as a result of this minute that Ms Hirstich became aware of Mr Kahotea’s custody application.

[9] At a judicial conference on 3 August 2001, the Judge conceded there was no authority in statute for the suggestion made in his minute of 27 July 2001 that he should consider on his own motion whether the children should be placed under the guardianship of the Family Court.

[10] The Judge saw the children in the presence of Mr Recordon on 3 August 2001. He subsequently issued a minute and aspects of that minute are relied upon by Ms Hirstich in the present application.

[11] As a result of what is said to be numerous errors and omissions in the administration and management of the file at the Papakura District Court, Ms Hirstich sought an order that the file be moved to the Auckland District Court. Another Judge directed the file be transferred to the Manukau District Court but held that the associated application requesting Judge Adams to recuse himself be heard by Judge Adams himself. The matter came before the Judge on 23 November 2001 and he declined the application in the judgment dated 27 November 2001.

The judgment

[12] After considering the legal tests, including a statement of Cooke P in Matua Finance Ltd v Equiticorp Industries Group Ltd [1993] 3 NZLR 650, which observed that Judges are well accustomed to give rulings at an interlocutory stage without in any way compromising their ultimate finding, he considered the submissions put forward on behalf of Ms Hirstich. The grounds he noted were:

• he had found against Ms Hirstich in his judgment of 25 May 2000 when he ordered that weekend access should occur in Whangarei rather than in Auckland;

• in accordance with a pre-trial direction he had restricted the hearing to one hour which curtailed cross-examination,

• he had criticised her in his judgment by observing that she had “chosen to respond with disproportionate vigour”;

• she took two remarks in his minute emailed to her on 27 July 2001 as having been directed against her personally;

• she feared that pre-determination or appearance of bias might flow from him having seen the children on 3 August 2001 and having advised the parties of the children’s views as expressed at that interview.

Ms Hirstich also saw a subsequent psychologist’s report as suggesting that her daughter believed that, having seen the Judge, the matter had already been determined. The Judge then considered each of the allegations and refused to disqualify himself.

Grounds of appeal

[13] The basic ground of appeal is that Judge Adams was wrong in fact and in law to reject Ms Hirstich’s concern that he was biased against her or had pre-determined the case. She relies upon three particular matters which occurred in the course of the proceedings, namely:

(a) The finding against her on the interim access application in the judgment of 25 May 2001;

(b) Certain comments in the Judge’s emailed minute dated 27 July 2001;

(c) Judge Adams having seen the children in his Chambers prior to the substantive hearing.

All these matters were raised, considered, and rejected by Judge Adams in his judgment.

The law

[14] In my view, with one small refinement, the Judge correctly applied the law. He noted the test from the Matua Finance case as being “that any reasonable, fair minded and informed observer would consider that . . . the Judge would display any pre-determination or appearance of bias.” The small refinement is that a fully informed Court personifies the reasonable observer in the test adopted by His Honour. The principles are set in Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 (CA), Locabail (UK) Ltd v Bayfield Properties Ltd & another [2000] 1 All ER 65(CA), and more recently in Man-O’war Station Ltd v Auckland City Council [2001] 1 NZLR 552 (CA). From those cases, and the cases referred to in them, I adopt for the purposes of this appeal the following principles:

(a) The test is whether in all the circumstances of the case there is a real danger or a real likelihood, in the sense of a real possibility, of bias;

(b) A real danger of bias may exist where the credibility of an individual is an issue to be decided and the Judge has in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his or her ability to approach such persons’ evidence with an open mind on any later occasion;

(c) A real danger may also exist where on any question at issue in the proceedings before him, the Judge has expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on the Judge’s ability to try the issue with an objective judicial mind;

(d) The fact that a Judge earlier in the same case or in a previous case had commented adversely on a party or found the evidence of a party to be unreliable would not without more found a sustainable objection;

(e) The reasonableness of the apprehension must be assessed in light of the oath of office taken by Judges to administer justice without fear or favour and their ability to carry out that oath by reason of their training and experience;

(f) It is for a fully informed Court personifying the reasonable observer to perceive a real danger that the Judge unfairly regarded a party’s case with disfavour.

Decision

[15] It is quite apparent that Ms Hirstich believes Judge Adams has already formed a view in favour of Mr Kahotea’s application to vary the existing order. The test, however, is not whether Ms Hirstich has formed these views but whether a fully informed Court personifying the reasonable observer would perceive that there was a real danger or likelihood of bias. This is a case where there has been ongoing litigation managed by Judge Adams. Obviously, he has given decisions against Ms Hirstich. He has also given decisions against Mr Kahotea. There is no suggestion that he has at any time rejected Ms Hirstich’s evidence in terms so outspoken that they throw doubt on his ability to approach her evidence with an open mind on a later occasion. There is no suggestion that he has expressed views on any of the matters at issue in such extreme and unbalanced terms that they cast doubt on his ability to try the issue with an objective judicial mind. It is necessary, however, to consider the allegations made by Ms Hirstich to determine whether any of them individually, or the cumulative effect of all of them, leads this Court to perceive there is a real danger that he would exhibit bias.

[16] Ms Hirstich’s first ground is that the Judge had formed a view in favour of Mr Kahotea’s application before the hearing on 23 May last. The grounds for this submission are the reference in the Judge’s minute of 24 April 2001 to not needing “to revisit this minor issue” which could be managed within one hour, his refusal to extend the hearing for more than one hour so cross-examination could be extended, the suggestion in his judgment that Ms Hirstich chose to respond with disproportionate vigour, his failure in his judgment to refer to some legal submissions made by Ms Hirstich’s counsel, and finally, that a later psychological report corroborated a number of Ms Hirstich’s concerns.

[17] In my view, the matters relied upon in respect of the judgment of 25 May 2001 fall well short of raising any concern in accordance with the legal tests stated above. It is correct that on the major point, the Judge decided in favour of Mr Kahotea. However, on some relatively important points, he decided in favour of Ms Hirstich. His findings cannot in any way themselves be evidence of bias. The fact that one party feels very strongly about a matter, and does not succeed in persuading a Judge, does not establish bias.

[18] Arguably, the reference to “this minor issue” may have minimised what was involved, but even if the description was somewhat inaccurate, it does not follow that this leads to a perception of bias. In his judgment, the Judge said:

“I had indeed restricted that case to one hour. I was concerned to manage that aspect of the matter within an appropriate time having regard to the volume of other equally important work calling for Judge time in this Court, the voluminous file, its record of almost continuous proceedings for several years, and the intensity of conflict between the parties.”

Against this background, which is supported by the evidence before this Court, the application to vary access would by many be seen as a minor issue in the context of the litigation as a whole. I accept it may not have been minor to the parties. The Family Court is a particularly busy Court and Judges in it work under great pressure. It is necessary for them to case manage files. In these circumstances I cannot see that restricting this hearing to one hour can in any way raise a perception of bias in favour of either party. If this point, and some of the other points raised by Ms Hirstich, can lead to a perception of bias, there would be constant applications to Family Court Judges to recuse themselves. The system would be unworkable if parties, disappointed by interlocutory rulings, were able to “Judge shop”. While Ms Hirstich’s counsel may have liked more than half an hour to cross-examine, there is no suggestion that she was in any way prejudiced by the manner in which the hearing was run.

[19] The Judge did note that Ms Hirstich had chosen to respond with disproportionate vigour. He said in his judgment of 25 May 2001:

“I will permit myself two small areas of criticism. Firstly, Mr Kahotea has attempted to revisit many aspects of the orders although, in some cases, little merit could be found. Secondly, Ms Hirstich has chosen to respond with disproportionate vigour.”

A fully informed viewer would, in my view, take this comment as an attempt to bring some sense to the proceedings. Against a background of continuous proceedings for several years and the intensity of conflict between the parties, a Judge with the interests of the children in mind is quite entitled, in my view, to make comments on the behaviour of the parents. He did so in a way in which he criticised
them both and in doing so, referred to the disproportionate vigour with which Ms Hirstich responded. Presumably this was, in part at least, a reference to an affidavit which Ms Hirstich filed in the proceedings. My reading of this affidavit is that it is a reasonably balanced affidavit but it included some comments which were inappropriate and, in my view, inadmissible. She alleged a drinking problem based on past history without any reference to recent history and she also presumed to express the views of her children in a critical way against their father. Then, counsel in written submissions, submitted that the application brought by Mr Kahotea was an abuse of process. Judge Adams’ criticisms of Mr Kahotea suggest that in some respects he did abuse the process but it cannot be said that the application itself was an abuse of process. There were grounds for the comment that Ms Hirstich’s response was disproportionately vigorous.

[20] The two final matters raised in respect of the judgment of 25 May 2001 can be dealt with briefly. Neither were referred to in Judge Adams’ decision of 27 November last and I do not know whether they were raised before him. The first issue is that the Judge did not refer to certain submissions of counsel in his judgment of 25 May 2001. A Judge is not required to refer to all counsels’ submissions. The submission made was that the Court will not vary an access order unless a welfare issue arises. In my view, it is difficult to accept that this is in fact a correct statement of the law when the provisions of s 17 of the Guardianship Act 1968 are considered. The second point relates to a report from a clinical psychologist ordered under s 29A of the Guardianship Act and dated 15 November 2001. It is said that this supports many of Ms Hirstich’s concerns. It is not necessary to determine whether or not this is so. The point is that it was ordered by the Judge to assist him in the forthcoming case. It was not before him on 23 May when he heard the variation application. It cannot in any way establish a perception of a danger of bias. In fact, the action of the Judge in requesting the report negatives, in my view, any suggestion of predetermination. Judge Adams in a minute of 3 August 2000 directed the report to address relevant issues. It is difficult to see that he would have done this if he had pre-determined the custody issue.

[21] The second major area of Ms Hirstich’s concern were comments in the Judge’s emailed minute of 27 July 2001. A portion of that minute has been set out in paragraph 8 above. In the final paragraph of the minute, the Judge said:

“I direct that all matters on this file be placed before me urgently, preferable about Thursday next week at Manukau. 30 minutes should suffice. When it is called I shall consider, among other issues, whether I should, on my own motion, place these children under the guardianship of the Family Court, and determine how their lives shall be structured over the next few months.”

Earlier in the email the Judge had said:

“I am well aware of the more or less constant fretting of this case, having presided over enough Court hearings or conferences to understand the dynamics. The evidence suggesting A might suicide is insufficient to raise my concern to the point that access should be suspended. The interests of both children would best be met in the very short term, in my judgment, by a continuation of the status quo.”

[22] It was submitted that there were four reasons why the Judge’s email of 27 July 2001 indicated bias. First, there was the reference to “constant fretting” which it was submitted was aimed at Ms Hirstich, notwithstanding the Judge in his judgment said it was aimed at both parties. Secondly, it was suggested that the reference to “understanding the dynamics” indicated that the Judge did not consider there was a genuine issue in relation to K’s well-being and hence, his refusal to suspend access for the weekend. Thirdly, the dismissal of the application was said to be a dismissal of the concerns of both Ms Hirstich and the school principal. Finally, it was submitted that the Judge’s statement that he was considering on his own motion “placing the children under the guardianship of the Family Court and determining how their lives shall be structured over the next few months” could only be perceived as being an attack on the appellant’s role as the children’s primary caregiver.

[23] In his judgment of 27 November, Judge Adams noted that he made the “fretting” reference because he had before him at that stage two applications, the one filed by Mr Kahotea seeking custody, and Ms Hirstich’s application to suspend access. The observation was aimed at both parties. In view of the background, this was an understandable comment and could certainly not be perceived as indicating a
bias against Ms Hirstich. Nor does his comment of “understanding the dynamics” indicate, in any way, bias. This Judge had been presiding over the file for some time. The intensity of conflict between the parties would be well known to him. He did understand the dynamics.

[24] Of more concern is the allegation that the Judge ignored the concerns of both Ms Hirstich and the principal over A’s suicide threat. As Mr Recordon submitted, an appropriate step which the Judge could have taken on receipt of the ex parte application to suspend access for the weekend would have been to have requested Mr Recordon’s views. However, the Judge did have some indication of Mr Recordon’s views. In her supporting affidavit, Ms Hirstich advised the Judge that she had sought Mr Recordon’s assistance in the matter and his handwritten response to her was annexed to the affidavit. Ms Hirstich expressed concern that Mr Recordon was not aware of her daughter’s level of distress and the real impact on the daughter of Mr Kahotea’s discussions with her regarding schools for next year. Mr Recordon’s response to this concern was, inter alia, to suggest that the access deferment was not the answer. His opinion was that access should proceed as arranged. An experienced Judge, aware of the dynamics of the matter, and also the views of the counsel for the child, did make a decision contrary to the concerns of Ms Hirstich and, possibly, the school principal. However, this was his judgment call and in the light of the information before him, the background knowledge which he had and Mr Recordon’s views which Ms Hirstich had provided him, he did not, in my view, make a decision which suggested bias against Ms Hirstich. I suspect this Judge, as most Judges would probably be, was at times frustrated by the activities of both parties. In my view, an overall assessment of the Judge’s actions indicates that he at all times had the interests of the children in mind. He would not have disregarded their interests when rejecting the application and certainly was not exhibiting a real likelihood of bias.

[25] The final point in respect of the minute of 27 July was the Judge’s comment that he would consider on his own motion placing the children under the guardianship of the Family Court. He acknowledged in his judgment of 27 November that the comment was in error because an amendment to the Guardianship Act made it no longer possible for the Family Court to make such an order on its own motion. The Judge gave as his reason for making this comment his concern for the well-being of the children. Ms Hirstich was seeking to suspend a recently imposed access order, she was advancing the proposition that her daughter might commit suicide, and Mr Kahotea was bringing in question the custody arrangement. I do not accept that his actions are capable of being interpreted in the manner suggested by counsel. They cannot be seen as an immediate and spontaneous reaction signalling an underlying negativity towards Ms Hirstich or bias against her. Nothing in the minute of 27 July, in my view, would cause me to perceive a real danger of bias. On the contrary, my perception is that the Judge’s overriding interest was for the welfare of the children.

[26] The final substantive point upon which Ms Hirstich relies is Judge Adams seeing the children in his Chambers prior to the substantive hearing. This interview was prompted by Ms Hirstich’s application to suspend access but as Mr Kahotea had also filed an application for custody, the interview with the children covered matters relevant to the custody application. The Judge met the children before a hearing on 3 August and at the commencement of that hearing, made a statement for the benefit of both parents arising out of his meeting earlier that morning. The minute issued noted, inter alia, the requirement in s 23 of the Guardianship Act that “the welfare of the child is the first and paramount consideration” and that the Court must find out the wishes of the child if the child is able to express them. These comments do not suggest pre-determination.

[27] There are several matters arising from the Judge seeing the children upon which Ms Hirstich relies. First, it was submitted it is an unusual practice to see the children before the substantive hearing. Secondly, in allowing the children to express their views to him and having then recorded their views in writing, the Judge, in effect, elevated their wishes to prime importance. A third matter arises from the Judge’s recorded comment “we spent some time talking about matters to do with their future.” Counsel submitted that this caused Ms Hirstich concern that the Judge may have expressed a view about future care arrangements in answering those questions. Fourthly, the Judge invited the children to sit in his chair and this is said to have left Ms Hirstich with the impression that, at least in the children’s minds, they were given the power to determine their future. Fifthly, the Judge was not prepared to pass on to the parents some of the frank discussion he had with the children. This made Ms Hirstich anxious that there had been matters discussed between the children and the Judge which have not been revealed and which may be prejudicial to her. It was said that an independent and objective judicial officer should not place himself in the position where he would not disclose to parents the matters discussed with the children. Then, it was submitted that in seeing the children in the manner which he did, the Judge usurped the role of a psychologist whom he appointed that day. The psychologist later reported that the daughter wondered why she had to see the psychologist as she had explained everything to the Judge and the lawyer. This was said to indicate that the Judge was not making the paramount consideration the welfare of the children and was making their wishes determinative in considering the question of custody. Ms Hirstich’s belief that the Judge has pre-determined the matter based on their wishes was reinforced by a statement in his minute which read:

“One of the awful things about seeing people’s children of course, is that you do feel kind of like an added little zing of responsibility to those children, when you have handled the case, but they are well worth it.”

[28] The beliefs of an anxious litigant do not determine that there is a real likelihood of bias. Many of the matters raised in respect of the seeing of the children are, in my view, trivial. None of them satisfies me there is any reason why the Judge should have recused himself. I do not know the practice of the Family Court in seeing children and no evidence of this was given to me. Family Court Judges are obviously required to see children to comply with their obligations under s 23 of the Guardianship Act. The meeting was arranged because of the ex parte application made by Ms Hirstich based on her concern at her daughter’s suicide threat. I can see no valid reason why he was not able to discuss the custody position with them at the same meeting. Indeed, it would seem practical and reasonable to do so. The fact that he discussed these matters with the children does not mean he has elevated their wishes to prime importance. In fact, his own minute acknowledges that he reminded himself of the provisions of s 23 of the Guardianship Act. Concerns of what views the Judge may have expressed during the meeting adds nothing. This was an experienced Judge who was well aware of his obligations and duties. I presume the submission that the Judge allowed the children to sit in his chair was a serious one but I cannot treat it seriously. How such an action can in any way suggest bias against one of the parties I fail to see. Nor am I of the view that the Judge’s refusal to tell both parents some of the matters discussed with the children in any way suggested bias. The Judge was not usurping the role of the psychologist as he made clear later that day when he appointed a psychologist to report on various aspects. The fact that one of the children may have perceived that the matter was at an end when she saw the Judge does not assist Ms Hirstich. The inability of the parents to agree has obviously put these children through a lot of stress and suggests that a view of a child in such circumstances suggests pre-determination by a Judge lacks any factual basis. In my view, the action of the Judge in seeing the children was appropriate. The report he made to the parents was appropriate and there can be no basis for suggesting that those actions indicate a real danger of bias.

[29] Finally, Ms Hirstich raised two subsidiary considerations. The first related to the judgment of 27 November 2001. In that judgment, the Judge referred to the views of counsel for the child who had expressed the view that there was no grounds in law for granting the application. It was said it was not appropriate to reflect this view. Counsel was present at the interview with the children and he saw nothing inappropriate with it. He has been closely involved with this proceeding and I find the comment made unobjectionable. There was then a criticism when the Judge resolved not to conduct a mediation conference. His reasons were said to be contradictory. I do not find them so. Finally, the lack of administration of the file at the Papakura District Court was said somehow to reflect upon the Judge. It seems as though the file was very badly administered at the Papakura Court but that was an administrative matter and in no way reflects on the impartiality of the Judge.

[30] In my view, none of the matters put forward on behalf of Ms Hirstich, when considered individually, would require the Judge to recuse himself. When they are considered cumulatively, the position does not alter. The impression I have from considering the file is that this is a case where there has been considerable litigation over a lengthy period of time, and the actions of both parties may have at times been looked on with disfavour by the Judge. Nevertheless, he has had in mind throughout the requirements of s 23 of the Guardianship Act. There was no basis for him recusing himself. In the circumstances the appeal must fail.

Costs

[31] Mr Kahotea asks for costs of $5000. Apart from the amount being completely inappropriate, it is not normal practice to award costs to a litigant in person. There is authority which says that such a litigant has no right to costs. There will be no costs award against Ms Hirstich. Mr Recordon does not need an order for his costs as he has been appointed under s 29A of the Guardianship Act.

Result

[32] The appeal is dismissed.