J v Family Court at Auckland
[2021] NZHC 831
•20 April 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-681
[2021] NZHC 831
UNDER the Judicial Review Procedure Act 2016 BETWEEN
J
Applicant
AND
FAMILY COURT AT AUCKLAND
First Respondent
D
Second Respondent
Hearing: 12 February 2021
Further submissions 25 February 2021 and 3 March 2021
Appearances:
R Harrison QC for the Applicant
M J McKillop for the First Respondent
No appearance by or on behalf of the Second Respondent A Cooke and M Mikkelson counsel for the Child
S P Jerebine Court appointed counsel
Judgment:
20 April 2021
JUDGMENT GORDON J
This judgment was delivered by me on 20 April 2021 at 11.30 am pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Crown Law, Wellington
D Burgess, Auckland Counsel: R E Harrison QC, Auckland
A Cooke, Auckland S Jerebine, Auckland
J v FAMILY COURT AT AUCKLAND [2021] NZHC 831 [20 April 2021]
TABLE OF CONTENTS
Introduction [1]
Background [5]
Grounds of review [10]
Response of counsel assisting [13]
Three preliminary matters [14]
Admissibility of affidavit of Principal Family Court Judge [15]
Submissions on behalf of Family Court [24] Admissibility of parts of affidavit of counsel for J in Family Court [38] Law [42]
First alleged legal error [51]
Second alleged legal error [54]
Workability? [71]
Statutory regime – CoCA principles [74]
Does importing s 85 narrow the application of s 57A? [77]
Third alleged legal error [86]
Fourth alleged legal error [93]
Fifth alleged legal error [98]
Three additional arguments [105]
A failure to analyse applicable statute law [106]
Section 83(1) of the FVA [108]
No separate assessment of J’s behaviour [111]
Natural justice claim – second ground of review [116]
Was sufficient notice given? [118]
Position prior to commencement of hearing [118]
At the hearing [125]
Discussion [131]
Section 6(2) of CoCA – obtaining views of child [158]
Abuse of process? [171]
Which statute confers a right of appeal and in what terms? [172]
Judicial review versus appeal [180]
Nature of arguments [181]
Conclusion [182]
Summary of decision [183]
Remedy [185]
Orders [191]
Costs [193]
Introduction
[1] The applicant, J, applies for judicial review of a decision of Judge Manuel in the Family Court at Auckland making a temporary protection order (TPO) against J in favour of the second respondent, her husband, D, and their three children pursuant to s 57A of the Care of Children Act 2004 (CoCA) and s 79 of the Family Violence Act 2018 (FVA).1
[2] The first respondent, the Family Court at Auckland, initially indicated it would abide the Court’s decision but sought, and was granted, leave to file an affidavit from the Principal Family Court Judge on a particular issue. Shortly before the hearing, counsel for the Family Court filed and served submissions. I refused leave at the commencement of the hearing for those submissions to be filed or oral submissions to be made.2
[3]D was not represented at the hearing and abides the Court’s decision.
[4] The Court-appointed counsel to assist, Ms Jerebine, provided submissions in opposition to the application. The Court also appointed Mr Cooke as lawyer to represent the children. Mr Cooke adopted the position that he would not enter the fray but made submissions to assist the Court so that relevant issues were addressed and for the Court to understand the role of lawyer for the children.
Background
[5] J and D’s marriage has broken down and they have separated. They have three children together aged (at the time of the Family Court hearing on 4 March 2020) 11, nearly 10 and 7.
[6] On 21 June 2019, J obtained a protection order under ss 13 and 14 of the Domestic Violence Act 1995 (DVA) against D to protect herself and the three
1 J v D [2020] NZFC 2253.
2 Addressed further in this judgment at [24] to [37] below.
children.3 J also obtained an interim parenting order which gave her day-to-day care of the children and which allowed D only supervised contact with the children.
[7] J then applied to make the protection order against D permanent and for the supervision of D’s contact with the children to continue. D opposed both applications. Judge Manuel heard the applications on 4 March 2020. At the end of the evidence, and before counsel commenced their closing submissions, the Judge indicated that she was “ … thinking about, but not committed to the course of making a protection order against both parents on the basis of the evidence that I have heard …”.4 The Judge asked counsel to address her on that issue.
[8] On 20 March 2020, the Judge issued her oral judgment.5 The Judge made a final protection order against D. She also made a TPO against J under s 57A of CoCA.6
[9] J now applies to review the decision to make the TPO on the grounds of error of law and breach of natural justice.
Grounds of review
[10] J pleads that the making of the TPO was ultra vires the powers of the Family Court and/or vitiated by material legal error, in all or any of the following respects:
(a)In terms of s 57A(1)(b) of the CoCA, this was not a case where “no application [had] been made to the Court for … a protection order” (given J’s own live protection order proceeding). A TPO could therefore not be made under s 57A;
(b)At least in relation to D, if not in relation to the children, the TPO constituted a prohibited “mutual order”, contrary to s 85 of the FVA;
3 The predecessor to the Family Violence Act 2018.
4 J v D Notes of Evidence Taken Before Judge A M Manuel FAM-2019-004-000531 and FAM- 2019-004-000532 [J v D Notes of Evidence] at 122.
5 J v D, above n 1.
6 At [47].
(c)Further or alternatively, when making the TPO, Judge Manuel failed to address or direct herself in terms of s 79(b) of the FVA as to whether the making of the TPO was necessary for the (future) protection of the husband and/or the children or any of them;
(d)Further or alternatively, the Judge relied (at least in part) as grounds for the making of a TPO against J, on psychological abuse of the children on the part of D. However, the adult recipient of psychological abuse must be treated as not responsible for any consequent psychological abuse of a child who is exposed to that abuse to the extent that she (or he) is the victim and not the abuser (s 11(3) of the FVA); and
(e)Further or alternatively, in terms of s 57A(2) of the CoCA, the Judge at no time considered whether a TPO was required because any orders made under CoCA “would not, by themselves, provide enough protection for” the intended beneficiaries of the TPO.
[11] The essential complaint as regards the second ground of review is an alleged breach of natural justice in that J was treated unfairly when the Judge raised the prospect of imposing a TPO without adequate warning of the legal basis or grounds for making such an order for which no application had been made.
[12] Further or alternatively, on the second ground of review, it is pleaded that in accordance with s 6(2) of CoCA, the children (through lawyer for the children) were entitled to be given a reasonable opportunity to express (in advance) their views on the making of the TPO and to have those views taken into account.
Response of counsel assisting
[13]In summary, the response of counsel assisting is:
(a)As a matter of statutory interpretation, s 57A of the CoCA is not limited to circumstances where no other protection order exists. This would require the Court to read words into s 57A;
(b)It appears unlikely that s 85 of the FVA applies to orders made under s 57A of CoCA as s 85 is not one of the sections referred to in s 57A of CoCA as being expressly included. Its application would cut across the purpose of CoCA;
(c)The Judge plainly considered whether or not other orders made under CoCA provided enough protection when making a temporary protection order and also considered whether the requirements of s 79(b) of the FVA were met;
(d)Section 11(3) of the FVA does not apply as the applicant was one of the perpetrators of the particular abuse for which the TPO was made; and
(e)Sufficient notice was given prior to the making of the TPO; there was adequate evidence before the Judge on which to make the order; and the children’s views were considered in accordance with the law.
Three preliminary matters
[14] Before considering the substantive application, there are three preliminary matters to be addressed: the admissibility of parts of the affidavit of the Principal Family Court Judge; the position adopted on behalf of the Family Court in filing submissions; and the admissibility of parts of an affidavit sworn by counsel who represented J in the Family Court.
Admissibility of affidavit of Principal Family Court Judge
[15] In a memorandum of 2 December 2020, counsel for the Family Court sought timetable orders for the filing of further evidence. Counsel submitted in particular, that the Court may be assisted by affidavit evidence of the usual practice of the Family Court in relation to the duty to take into account children’s views under s 6(2) of CoCA. Counsel stated that this would be general evidence about the practice of a specialist jurisdiction and would not concern the judgment under review.
[16] In a minute of 18 December 2020, van Bohemen J recorded that Mr Cooke supported the filing of evidence of Family Court practice on obtaining the views of children; and that while Mr Harrison QC for J submitted that the Court would be unlikely to obtain substantial help from evidence on this issue, he did not oppose the filing of such evidence.
[17]Leave was granted as sought.
[18] However the affidavit as filed goes beyond the topic for which leave was granted. Mr Harrison objected to the admissibility of two parts of the affidavit. The first is a section which follows on from the part which addresses obtaining the views of a child under s 6(2) of CoCA. In the part objected to, the Principal Family Court Judge refers to what she describes as the recent debate regarding the appropriateness of obtaining children’s views prior to a s 133 CoCA psychological report being directed. She then comments on the application of s 133(7) in the context of obtaining a child’s views.
[19] This part of the affidavit does address the issue of seeking the views of a child. But it relates to a different (legal) context and it seems to me the contents are of marginal relevance. However, it does fall within the scope of the topic for which leave was given, namely obtaining a child’s views under s 6(2) of CoCA. I accordingly admit that portion of the affidavit.
[20] The second part to which objection was taken addresses the prohibition on mutual protection orders under s 85 of the FVA. The objection is a sound one. The evidence is unrelated to the subject matter for which leave was granted. In any event, the Court received full submissions on the issues that arise as regards s 85 of the FVA. I do not admit this portion of the affidavit.
[21] Mr Harrison makes a further and separate argument on admissibility. He submits that parts of the affidavit trespass into the field of evidence and submission. First, as to an alleged trespass into evidence, I do not accept that submission. It is appropriate for an abiding decision-maker to provide evidence which “elaborates on
the necessary processes” of a specialist jurisdiction, when that evidence is likely to assist:7
It is obviously important that decisions affecting the general process of a specialist Court should be made with full awareness of that Court’s objectives and the best method of achieving them. Evidence from experience is most useful.
[22] As to the criticism that the affidavit contains legal submissions, in my view any legal discussion in the affidavit simply provides a context for the Judge’s evidence about the operation of the Family Court as a specialist jurisdiction. Plainly, insofar as a view of the law is advanced, those observations are not binding on this Court.
[23] The affidavit is admitted, save for the section on mutual orders under s 85 of the FVA.
Submissions on behalf of Family Court
[24] At the commencement of the hearing, I heard an application on behalf of the Family Court at Auckland for leave to make submissions. I refused the application, both in respect of written submissions already filed and for any oral submissions. I recorded my reasons in a minute. They are addressed again here.
[25] The first respondent’s position as to its role in the proceeding is recorded in three minutes of this Court. On 27 August 2020, it is recorded that counsel, Mr McKillop, submitted the Family Court was likely to abide the decision of the Court. A second minute of 25 September 2020 states “The Family Court abides the Court’s decision, as is usual for a decision-maker”. Then on 5 November 2020, it is stated, “The Family Court abides the High Court’s decision on the substantive challenge”.
[26] There was an interim application in this proceeding by J for an order staying the proceeding in the Family Court on, and in relation to, the TPO. The third minute of this Court that I have just referred to records that the Family Court did not actively oppose the making of interim orders but had noted a number of points for the
7 Shaw v Attorney-General (2002) 16 PRNZ 761 (HC) at [29].
assistance of the High Court given the primacy of the interests of the children and the fact that they were not represented.
[27] Without notice to the Court, counsel for the first respondent subsequently filed and served written submissions in the substantive application on 5 February 2021.
[28] The submissions ran to 17 pages and were in three parts. The first part sought exclusion of evidence contained in an affidavit from counsel who appeared for J in the Family Court concerning what was allegedly said by counsel and the Judge in relation to whether or not the Judge would hear from the children. The submission was to the effect that the Court should exclude the evidence insofar as it was inconsistent with the record (the transcript of this part of the proceeding having been typed up) and the settled process for challenging the accuracy of an inferior court’s record.
[29] The second part addressed parts of the content of the affidavit of the Principal Family Court Judge, namely s 6(2) and s 57A of CoCA.
[30] The third, and longest part of the submissions was headed “Abuse of process”. Within that section there was a submission that the proceeding ought to have been the subject of an appeal. It was also submitted that the application for judicial review was an abuse of process because it tended to undermine the purposes and effective operation of the protection order regime. No other party had raised this issue.
[31] Mr Harrison “strenuously opposed” leave being given for submissions to be made on behalf of the Family Court. He submitted that the first respondent had become a “protagonist” and had “enter[ed] the fray”. Mr Harrison particularly emphasised that “… the last minute introduction of a major issue such as “abuse of process” was unfair to the applicant at this late stage”. He also submitted the written submissions were selective and incomplete in terms of supporting authorities cited.
[32] The involvement of a decision-maker in judicial review proceedings is commented on in The Secretary for Internal Affairs v Pub Charity.8 There the Court of Appeal said:9
It is a well-established principle that decision-makers should not become protagonists in appeals from their own decisions. The proper course is to abide the decision of the court and not enter the fray. The decision should speak for itself. Exceptionally, the court may allow a decision-maker to appear where the court considers it may benefit from the decision-maker’s assistance, for example in matters relating to the administration of the legislation at issue. A court will also sometimes hear from a decision-maker on questions of jurisdiction. The present case did involve a question of jurisdiction. However, the submissions filed by the Commission went beyond that. Further, this was not a situation where the Court did not have the benefit of full argument on each key issue from the competing parties. Both the Secretary and Pub Charity filed comprehensive submissions.
In those circumstances, we declined to grant Mr Browne leave to appear. (citations omitted)
[33] In Environment Defence Society Inc v The New Zealand King Salmon Co Ltd, the Supreme Court said:10
In rare cases a decision maker may be of assistance, for example, where there is a need for a contradictor or where it is important that the Court have a wider perspective than the parties may be able to provide. If a decision maker does appear, it should as far as possible act in a non-partisan fashion.
With regard to the current case, we did not call on counsel for the Board to be heard orally and we did not take its submissions into account. All issues were fully argued by the respective parties to the two appeals. Further, while the Board claimed that its submissions were non-partisan and there merely to assist the Court, numerous parts of the Board’s submissions appeared to be entering the fray.
(citations omitted)
[34] With that background, I return to the three topics on which counsel sought to make submissions. The first submission was that the Court should exclude evidence as to what was allegedly said by counsel and the Judge where that evidence was inconsistent with the record (and I have yet to determine whether that is in fact the
8 The Secretary for Internal Affairs v Pub Charity [2013] NZCA 627.
9 At [27]–[28].
10 Environmental Defence Society Inc v The New Zealand King Salmon Co Ltd [2014] NZSC 41, [2014] 1 NZLR 717 at [13]–[14].
case). This is not a matter that falls within the kinds of circumstances referred to in the two judgments set out above.
[35] As to the second topic, the affidavit speaks for itself. Further elaboration by way of submission was not necessary.
[36] It was the third topic, namely abuse of process, that was of the most concern. It raised a new and significant issue not addressed by the parties. The submissions were partisan.
[37] For all those reasons, the application on behalf of the first respondent to make submissions was refused.
Admissibility of parts of affidavit of counsel for J in Family Court
[38] Although, as noted above, I did not hear from counsel for the Family Court on this issue, I nevertheless address the question of admissibility for completeness. The two parts of the affidavit in question are:
10.… Both [D] and [J] sought for the Judge to hear from the children but her Honour said she did not wish to hear from them.
11.… At the start of the hearing Judge Manuel advised Counsel that the hearing duration was for three hours, and that we were expected to keep to the allotted time. However, as the hearing progressed, having commenced at around 10.00 am, it continued (with the usual breaks) until shortly after 5 pm. …
[39] The record of the Family Court hearing, including a transcription of discussions between the Judge and counsel, is before this Court. It indicates that D requested that the Judge meet the children in chambers as a way of hearing their evidence directly in a candid and forthright manner. In her memorandum, counsel for D noted that request and stated that J also agreed. The record does not appear to disclose any judicial decision or direction in relation to that request. Specifically, it does not disclose that the Judge stated she did not wish to hear from the children.
[40] What is not in dispute is that the Judge did not in fact hear from the children in person. That fact is all that is necessary for the purposes of this proceeding. In the
absence of any reference in the record to a decision by the Judge, the part of paragraph 10 of the affidavit referred to in [38] above is not admitted.
[41] As to paragraph 11, there is little difference between counsel’s description in her affidavit and what is apparent from the transcript of the discussion between the Judge and counsel at the beginning of the hearing. The record discloses that the Court referred to the case having been set down for a half day hearing but that the Judge’s view was she could see the case taking all day. The Judge said that the case may be worth a day’s hearing, but that it was unacceptable for counsel to estimate a half day for the hearing and for the hearing to then take a full day. The matters discussed are of no real relevance to the matters in issue in this Court. However, it is the record itself that is appropriately before the Court, rather than what counsel recalls of the discussion with the Judge. For that reason, I rule that the part of paragraph 11 of counsel’s affidavit referred to in [38] above is inadmissible.
Law
[42]Section 57A of CoCA provides:
57A Power to make incidental temporary protection order
(1)This section applies if—
(a)an application has been made to the court for any of the following in respect of a child:
(i)a guardianship order under section 19 or 27:
(ii)a direction under section 46R in relation to a guardianship dispute:
(iii)a parenting order under section 48 (whether an interim parenting order or a final parenting order):
(iv)a variation of a parenting order, under section 56; and
(b)no application has been made to the court for, but the court is satisfied that had an application been made to it for the purpose the court would have made, a protection order (whether a temporary protection order or a final protection order) made under the Family Violence Act 2018 in respect of all or any of—
(i)the child, or a parent or any other person who has the role of providing day-to-day care for, or who may have contact with, the child; and
(ii)a party to the application (in paragraph (a)) for the order or direction under this Act.
(2)The court may make a temporary protection order under section 79 of the Family Violence Act 2018 if satisfied that any orders or directions made under this Act will not, by themselves, provide enough protection for all or any of the people specified in subsection (1)(b).
(3)Sections 76 to 78 of the Family Violence Act 2018 apply to a temporary protection order made under this section as if the order were one made on an application without notice, and with all other necessary modifications.
[43] Section 57A is a new provision inserted into CoCA with effect from 1 July 2019 (the same date the FVA came into force) by s 20 of the Family Violence (Amendments) Act 2018, as part of an overhaul of the family violence regime by the then government.
[44] Section 57A was introduced by the Family and Whānau Violence Legislation Bill 2017 (the Bill). The Departmental Disclosure Statement on the Bill describes the role of s 57A as being in “relation to consideration of children and contact arrangements under CoCA”.11 The Bill “empowers Judges” considering applications under CoCA to make TPOs where the CoCA order “will not provide enough protection”.12 I will come back to other documents commenting on the Bill including the Select Committee Report and submissions made to the Justice and Electoral Select Committee in the context of a consideration of the submissions made by Mr Harrison in relation to s 85 (mutual protection orders) of the FVA later in this judgment.
[45] At this point, I note that the three subsections of s 57A perform different functions. Section 57A(1) sets out the circumstances in which the section applies. It does so if, under s 57A(1)(a) an application is made to the Family Court for any of the
11 Departmental Disclosure Statement, Family and Whanau Violence Legislation Bill, Ministry of Justice (3 March 2017) (Departmental Disclosure Statement) at 1. The statement brings together information to support Parliamentary and public scrutiny of the Bill, and identifies the policy intent of the Bill, and certain significant powers that might be of particular interest and warrant an explanation. The Ministry of Justice certifies that, to the best of its knowledge and understanding, the information int eh statement is complete and accurate (page 1).
12 At 5.
four specified orders “in respect of a child”. One of the specified applications is for a parenting order (whether interim or final) under s 48 of CoCA. An application for an interim parenting order had been made by J in this case and accordingly the first pre- condition is satisfied (agreed by all counsel).
[46] The second pre-condition under s 57A(1)(b) is for consideration in J’s first legal error argument, which I will come to shortly.
[47] Next, there is s 57A(2). Mr Harrison and Ms Jerebine submit that this is the provision which actually empowers the Court to make a TPO. For completeness I set out the subsection again here:
(2)The court may make a temporary protection order under section 79 of the Family Violence Act 2018 if satisfied that any orders or directions made under this Act will not, by themselves, provide enough protection for all or any of the people specified in subsection (1)(b).
[48] Mr Cooke submits that the jurisdiction to make the TPO arises from the FVA, and not CoCA “notwithstanding that the ‘pathway’ to the order came from CoCA and s 57A”. To the extent that Mr Cooke advances a different legal position, I prefer the analysis of Mr Harrison and Ms Jerebine, namely that s 57A(2) is the empowering provision and the Court then makes a TPO under s 79 of the FVA. It is consistent with the wording of the subsection.
[49] Finally, s 57A(3) specifically incorporates specified provisions of the FVA. I set out the subsection again for completeness:
(3)Sections 76 to 78 of the Family Violence Act 2018 apply to a temporary protection order made under this section as if the order were one made on an application without notice, and with all other necessary modifications.
[50] A consideration of this subsection arises in the context of J’s arguments on the second alleged legal error.
First alleged legal error
[51] Mr Harrison’s submission is that s 57A(1)(b) of CoCA prevents the making of an order because J had already made an application against D, and s 57A applies only where no application has been made in respect of any party at all.
[52] I accept the submission Ms Jerebine makes that this argument materially narrows the scope of s 57A by importing words by implication. In essence Mr Harrison’s submission is that the application of s 57A is limited only to those situations where no other protection order exists or where the Court has no family violence proceedings before it. His submission effectively is that the phrase in s 57A(1)(b) “no application has been made” includes the words “no other application or order has been made against any party or person related to the children described in ss 57A(1)(a) or 57A(1)(b)(i) and (ii)”. There are many authorities which confirm that words cannot be imported to a statute. One must always go back to the statutory language.13 Further, and importantly, the words “no application has been made” are used so as to allow the judge, on their own initiative, to make a protection order in the best interests of the children and do not exist to narrow the scope of the section.
[53]The first alleged legal error is not made out.
Second alleged legal error
[54] Mr Harrison submits that s 85 of the FVA applies and accordingly prevents the making of an order absent an application by D. There was no such application in this case.
[55]Section 85 of the FVA provides:
85 Mutual orders
If the court grants an application for a protection order, the court must not also make a protection order in favour of the respondent unless—
13 In re Southland and Bay of Islands Classification under the Water and Soil Conservation Act 1967 Appeals [1976] 1 NZLR 1 (SC) at 7]. See also Sportzone Motorcycles Ltd (in liq) v Commerce Commission [2016] NZSC 53 at [82] and Gordon v Auckland City Council HC Auckland CIV-2006-404-4417, 29 November 2006 at [69].
(a)the respondent has made an application for a protection order; and
(b)the court has determined that application under this Act.
[56]The former s 18 of the DVA was in similar terms:
18 Mutual orders
Where the court grants an application for a protection order, it must not also make a protection order in favour of the respondent unless the respondent has made an application for a protection order and the court has determined that application in accordance with this Act.
[57] Mr Harrison submits that having regard to the transitional provisions in the FVA (which mean that the DVA continued in force in relation to J’s earlier application in relation to D and the TPO made against him) the better view is that the constraint against mutual orders in this case arises under s 18 of the DVA rather than s 85 of the FVA. Ms Jerebine submits any constraint if it arose (and she submits there is no constraint) would arise under s 85 of the FVA because the Judge is exercising a fresh power under s 57A of the CoCA.
[58] I favour the submission made by Ms Jerebine. Clause 3(2)(b) of Schedule 1 to the FVA provides that an order made under the DVA (i.e. the TPO against D) continues in effect and may be varied, discharged, enforced or made final under the FVA. Therefore any constraint or prohibition against mutual orders arises under s 85 of the FVA (not s 18 of the DVA). Although in the end whether that is the correct view or not does not matter as the two sections are materially the same.
[59] Returning to the substantive argument, Mr Harrison notes that while s 57A(2) and (3) make express reference to incorporating particular sections of the FVA, namely ss 76 to 79, that express mention does not mean that those sections are the only provisions of the FVA which govern and constrain an exercise of the Judge’s s 57A power to make a TPO.
[60] Mr Harrison submits that other relevant provisions of the FVA, such as s 11(3) and s 85 and equally more general provisions such as the FVA’s definitions and its
interpretation and purpose provisions,14 are imported. Mr Harrison says if that were not the case there would be different tests and standards and potentially different content for a TPO made under s 57A as against a TPO made under the FVA.
[61] Mr Harrison submits that so far as the specific reference to s 79 of the FVA in s 57A(2) is concerned, that is plainly no more than a precautionary reference to the key provision guiding the Court as to the making of protection orders generally. He submits it would be absurd and unworkable if other governing provisions of the FVA were not equally applicable (subject to any express constraints in s 57A). He submits the broader reference to “made under the Family Violence Act 2018” in s 57A(1)(b) supports this.
[62]Finally, Mr Harrison refers to the interim relief judgment of van Bohemen J:15
For present purposes, I note that there must at least be a question as to whether, when enacting 57A of the CoCA, it was Parliament’s intention that a Judge hearing an application to confirm an interim parenting order that gave day to day care of the children to one parent could also make a temporary protection order against that parent. The section enables the Family Court to make incidental temporary protection orders when considering applications for parenting or guardianship orders if satisfied that those orders and other orders or directions made under the CoCA will not, by themselves, provide enough protection. The temporary protection order reinforces the CoCA orders. It would seem unlikely, therefore, to have been intended to be used to impose an order that would appear to be inconsistent with those other orders.
[63] Ms Jerebine submits in summary that it is not clear at law that s 85 of the FVA applies to orders made under s 57A of CoCA and in fact the law appears to weigh against such an argument:
(a)There is no express reference to s 85 of the FVA in s 57A of CoCA;
(b)Different statutory principles apply to decisions made under CoCA such that s 85 is not imported by necessity or implication;
14 Sections 3, 4, 5, 8–15, 59, 79–89 (dealing with the making and scope of protection orders) and ss 90–104 (providing for standard and special conditions of protection orders).
15 J v Family Court at Auckland [2020] NZHC 3429 at [62].
(c)Application of s 85 of the FVA to s 57A of CoCA would materially narrow the Court’s jurisdiction under the latter section and would shift the focus away from children; and
(d)The purpose of s 57A of CoCA is to promote the safety of children.
[64] First as to the plain words of s 57A, the section does not refer to s 85 of the FVA but it does expressly require application of ss 76 to 79. Nor is there anything in ss 76 to 79 of the FVA that expressly requires that s 85 of the FVA applies. Sections 75 to 78 of the FVA are in the subpart “applications without notice”. Sections 79 to 85 are in the subpart “making of protection orders”. The legislature has expressly selected ss 76 to 78 from the former subpart and from the latter s 79.
[65] As Ms Jerebine points out, here is an example of the legislature determining expressly which sections to import from the FVA into the application of s 57A and which sections not to import. She notes that s 75 of the FVA prescribes the requirements for an application without notice and s 79 prescribes the requirements for making of a protection order. The legislature has therefore chosen not to select application of s 75 apparently because it wished to impose the process and requirements of s 79 over s 75. It would therefore appear the legislature has specifically determined particular sections that are to apply from these two subparts. Section 85 is not included.
[66] Second, as also pointed out by Ms Jerebine, the legislature has also identified which of the sections as to preconditions and which of the sections as to the process following the making of an order are to apply to s 57A.
[67] Accordingly, s 79 contains the test which must be satisfied before the TPO can be made. Sections 76 to 78 provide for the process following the making of a protection order, specifically, as to when it becomes final (s 76(a)(1)) and how the respondent may oppose the making of a final order, or seek a variation (ss 77 to 78). The importing of these sections provides first for the test that must be met before making the order and then what occurs in terms of process after the order has been made.
[68] Section 85 would have the effect of materially narrowing circumstances in which a Judge may make an order under s 57A. Had the legislature intended to impose a further restriction on the Court’s ability to make a TPO over and above the requirements of s 79 it would have done so by express reference to s 85 of the FVA.
[69] Next, I accept Ms Jerebine’s submission that there is nothing within ss 76 to 79 of the FVA to suggest that s 85 applies:
(a)Section 76(2) is stated to be subject to ss 147 to 155. Those sections concern the procedure and steps toward making a final protection order after the TPO has been made. None of those sections refers to s 85 which concerns jurisdiction prior to make a TPO;
(b)Sections 77 and 78 refer to ss 108, 109, 147, 159 and 189. Those sections all relate to steps after the order has been made. None refers to s 85;
(c)Section 77 also refers to s 188 which is about the Court’s ability to make directions with respect to non-violence programmes. It does not refer to s 85; and
(d)Section 78 also refers to s 89 which concerns protection from a respondent’s associates. It does not refer to s 85.
[70] In summary, subs 57A(2) and (3) of the CoCA provide for the preconditions to making an order and for the application, variation and discharge of orders by importing identified sections of the FVA. There is no importing of other sections or constraints to apply to CoCA.
Workability?
[71] Sections 79 to 85 are in the subpart of the FVA headed “Making of Protection Orders”. As already noted, while s 79 is expressly included under s 57A(2), ss 80 to 85 are not. I now examine ss 80 to 84 in response to Mr Harrison’s submission that
s 85 (and other provisions in the FVA) must be imported otherwise the outcome would be unworkable:
(a)Sections 80 (violence by another person encouraged by the respondent) and 81 (protection order may be based on different types of violence) expressly refer to s 79, thus expanding its scope. It is likely these two sections would apply to the application of s 57A;
(b)Section 82 imposes a duty on the Court to consider whether apparently minor or trivial behaviours form part of a pattern against which victims need protection. If this section is not imported it does not render the process unworkable for two reasons. First, under CoCA the Court must take into account the welfare and best interests of a child and under s 57A(2), the Court may make a TPO if satisfied that any orders or directions made under CoCA will not, by themselves, provide enough protection. Second, s 5(a) of CoCA requires a child’s safety to be protected in particular from all forms of violence as defined in s 10 of the FVA and s 10(2) requires minor or trivial behaviour to be considered;
(c)Section 83 requires the Court to have regard to the perception of a child and/or others of the nature and seriousness of the behaviour and the effect of that behaviour on the child and/or others. However, these matters are required to be considered under s 57A by virtue of s 4 (child’s welfare and best interests to be paramount), s 5 (principles relating to child’s welfare and best interest) and s 5A (family violence to be taken into account). In other words, there is no reason for s 83 to be imported;
(d)Section 84 provides that a Court must not decline to make a protection order merely because of the existence of other proceedings between or relating to parties. This section is similarly not needed because s 57A specifically provides for a protection order to be made in the context of other identified proceedings.
[72] In short, I do not accept Mr Harrison’s “workability” argument in relation to the other provisions in the same part of the FVA as s 85.
[73] As to Mr Harrison’s argument that s 11(3) (the person who suffers psychological abuse is not regarded as having caused or allowed the child to see or hear the abuse or put the child, or allowed the child to be at risk of this) must be imported even though it is not expressly mentioned in s 57A, it is already expressly imported under s 5(a) of CoCA.
Statutory regime – CoCA principles
[74] Mr Harrison submits that if s 85 of the FVA is not imported, along with other provisions of the FVA, there would be different tests and standards, and potentially different content, for a TPO made under s 57A as against a TPO made under the FVA.
[75] However, different tests and standards do apply to decisions under the two Acts. They have fundamentally different starting points. As already noted the judicial decision to make the TPO arises under s 57A and the order itself is made under s 79 of the FVA. Because the decision is made under s 57A of CoCA it is subject to the mandatory principles of CoCA. Under s 3, the purpose of CoCA is to promote children’s welfare and best interests. Under s 4, the welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration in the administration and application of CoCA and in any other proceedings involving the guardianship of, or the role of providing day-to-day care for or contact with a child. Section 4(2) requires any person considering the welfare and best interests of a child to take into account the principles in s 5. Those principles relating to a child’s welfare and best interests, place the protection of a child’s safety as the first of those principles.16
[76] By contrast there is no paramountcy provision in the FVA. In s 3(1), the purpose of the Act, the place of children is not referred to until s 3(1)(c) and then only to state that children are within the category of “victims”. In other words there is a
16 K v B [2010] NZSC 112, [2011] 2 NZLR 1 at [27]. The Supreme Court emphasised that the principle in s 5(a) will generally carry decisive weight in the factual assessment.
difference as between temporary orders made under CoCA as opposed to those made under the FVA.
Does importing s 85 narrow the application of s 57A?
[77] Ms Jerebine submits that not only is the outcome, without the application of s 85 workable but importing s 85 would materially narrow the Judge’s ability to make a protection order that is otherwise in the best interests of the child.
[78] Section 85 of the FVA provides that where the Court has granted an application for a protection order the Court must not also make a protection order in favour of the respondent unless the respondent has applied for such an order. However, in contrast, s 57A permits the making of an order when no application has been made. Accepting Mr Harrison’s submission would mean that s 57A could never be used to make a protection order in favour of a respondent if a protection order already exists. That is because, if s 85 of the FVA applies, when a protection order exists against one party (the respondent), it only permits the making of a further protection order in favour of the respondent when the respondent themselves makes the application. But s 57A only permits the making of a protection order when no application has been made.
[79] In other words, s 57A would be limited to the making of a protection order in circumstances where it is only ever required against one parent or caregiver. But that is not what s 57A provides.
[80] If J’s argument were accepted, and if the Judge considered both parents posed a risk and further protection over and above what could be ordered under the CoCA provisions was required, the Judge could not impose a protection order under s 57A if there was already a protection order in existence against one of the parents.
[81] Second, importing s 85 of the FVA into s 57A shifts the focus away from the child. Section 57A of CoCA applies only where a Judge is satisfied that any orders or directions under CoCA will not provide enough protection for the child and/or for any other person who provides care for the child (s 57A(2)). When applying s 57A, s 4 of CoCA requires that the child’s welfare and best interests must be the first and paramount consideration. Section 4 of CoCA provides support for s 85 of the FVA not
applying. In this way TPOs may be imposed against both parents if needed to protect the child. As already noted, s 5(a) of CoCA provides that the focus must be the safety of the child and that focus is “generally decisive”.17 Given that focus, if s 85 were to be imported that would require an express statutory provision.
[82] Further, the purpose of inserting s 57A to CoCA was to improve the safety of children by allowing for the making of TPOs in care of children proceedings.18 That proposition is apparent from some of the commentary that accompanied the enactment of s 57A. The Regulatory Impact Statement, commenting on the Bill, noted policy proposals emphasised the “importance of ensuring that decisions about the care and welfare of a child are made in the context of CoCA, the piece of legislation designed for this purpose”.19 The statement also says that other options to consider include “ensuring that children’s interests are adequately considered in decision-making, and that children and young people have better access to protection orders and to safety programmes in their own right”.
[83] The Select Committee Report issued in August 2017 introducing the Bill referred to the high number of children present at all family violence incidents attended by police officers. The report also referred to the Bill having three main features, including making changes to improve the accessibility and effectiveness of civil orders (including police safety orders and protection orders).
[84] The Principal Family Court Judge, Principal Youth Court Judge and the Chief District Court Judge made a submission to the Justice and Electoral Select Committee on the interface between the FVA and CoCA. In that submission, the Judges noted the different and exclusive regimes provided for under CoCA and the FVA in the absence of any express reference to the other legislation.20 The Judges also noted, in the context of the then proposed ability to make parenting orders under the FVA, that without “an express requirement to consider the welfare and best interests of the child,
17 K v B, above n 16, at [27].
18 Family and Whānau Violence Legislation Bill (Ministry of Justice) “Briefing to the Justice and Electoral Select Committee” (9 September 2018) at 8
19 Ministry of Justice “Review of family violence legislation: Regulatory impact statement” at 25
20 Principal Family Court Judge, Principal Youth Court Judge and Chief District Court Judge “Submission of the Judges of the District Court and the Family Court to the Justice and Electoral Select Committee” (27 May 2017) [Judges’ submission] at 7.
it is unclear what place that otherwise paramount consideration has in decision-making under the particular sections in the FVA”.21 The submission therefore considers that without express reference to a particular statutory provision from one Act to another, the provisions of one Act cannot be imported into the other. The Judges also considered that a different standard and test does apply to orders made under the FVA as opposed to those made under CoCA in the absence of an express statutory requirement to the contrary22
[85] In conclusion and for all the reasons set out above, s 85 of the FVA did not operate in this case to prevent the Judge making the TPO against J.
Third alleged legal error
[86] Mr Harrison submits that the Judge’s “rudimentary reasoning” was insufficient compliance with s 79 of the FVA, in particular, as regards the necessity for the TPO for the (future) protection of D and/or the children.
[87] Ms Jerebine submits that the Judge did consider whether the requirements of s 79(b) of the FVA were met and that this is evidenced by the reasons given in the judgment. She is supported in that submission by Mr Cooke.
[88] Section 79 of the FVA provides that the Court may make a protection order if satisfied that:
(a)the respondent has inflicted, or is inflicting, family violence against the applicant, or child or the applicant’s family, or both; and
(b)the making of an order is necessary for the protection of the applicant, a child of the applicant’s family, or both.
21 At 8.
22 “Parties who seek variation or discharge of a parenting order in accordance with the Care of Children Act 2004 procedure will need to address different considerations from parties referred to a Judge pursuant to the proposed ss 51S(1) and 51!(1)(d) of the Family and Whānau Violence Act 1995”.
[89] There are four steps in the inquiry. First, is there a family relationship between the parties? In this case there is. Second, has the respondent committed family violence, as defined in s 9 of the FVA?23 The Court made findings of fact on this issue:24
(a)“I find the physical abuse of the children in the form of “discipline,” to be proven. Although the mother denied using a spatula on the boys, I found her answers in cross-examination claiming that she had broken a spatula, but not used it on the boys, and when the spatula broke the whole family including the father had laughed, to be unconvincing.
Both parties used physical “discipline” on their boys.”;25
(b)“I am unable to make positive findings on a number of the allegations that they each make about each other, but I find that they each abused and threatened each other, with a cruelty and intensity, which was apparent when they gave evidence in this Court. If anything, their behaviour was likely to be less constrained in the privacy of their own home.”;26
(c)“But that is not the worst aspect of this case. The worst aspect is that the parties seem to have lost any concept of the importance of protecting their boys from their conflict. Both parties subjected each other to psychological abuse in the context of the breakdown of their marriage, and their children as well because of the cavalier or careless attitude they took to protecting their boys from this.”;27
(d)“The incident on 12 June 2019 is a perfect example. [H], who is perhaps the most vulnerable of the three boys, was distressed. Why did
23 Under s 9 of the Family Violence Act, violence means all or any of: physical abuse, sexual abuse, and psychological abuse. It includes a pattern of behaviour made up of acts including the three kinds of abuse referred to. Under s 11, psychological abuse includes intimidation or harassment. Psychological abuse occurs when a person causes or allows the child to see or hear the psychological abuse of a person with whom the child has a family relationship.
24 J v D, above n 1, at [40].
25 At [40].
26 J v D, above n 1,at [43].
27 At [44].
the parents not comfort him, and both go to another room? I was concerned that when the mother was questioned about psychological abuse by the children’s lawyer, she seemed to have little appreciation of her own part in exposing the children to adult conflict. She characterised this as trauma, but not psychological abuse. I find to the contrary that exposing the children in this way was abusive.”;28 and
(e)“In summary, I find that both parties used psychological abuse against the other around the time of the separation and the children were exposed to this.”29
[90] The third step is to consider whether the making of the order is necessary for the protection of the applicant or a child of the applicant’s family. The Court found that it was. The Judge found there was a risk of exposure to further psychological abuse while the children were in the other parent’s care.30 The Judge found that not only was it necessary for a final protection order to be made against D, she considered it was necessary for a TPO to be made against J.
[91] Finally, there is the discretion to make the order. In Surrey v Surrey, the Court of Appeal stated:31
[71] … We do not consider that in the case of protection orders there is any real discretion once a Court is satisfied that both limbs of s 14(1) of the DV Act are met.32 To decline a protection order in such circumstances would not accord with the protective objects of the DV Act.
[92] For the above reasons the Judge did not fail to consider the requirements of s 79 of the FVA as a whole, nor in particular in terms of s 79(b).
Fourth alleged legal error
[93] Mr Harrison submits that the Judge, in relying (at least in part) on psychological abuse of the children as grounds for making the TPO acted contrary to
28 At [45].
29 At [48].
30 At [46].
31 Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581 at [71].
32 Section 14(1) of the Domestic Violence Act is the predecessor of s 79 of the Family Violence Act.
s 11(3) of the FVA. That subsection provides that the adult recipient of psychological abuse must be treated as not responsible for any consequent psychological abuse of a child who is exposed to that abuse to the extent that he or she is the victim and not the abuser.
[94]In response, Ms Jerebine submits that s 11(3) does not apply in this case.
[95]Subsections 11(2) (included for context) and (3) provide:
11 Meaning of psychological abuse
…
(2)A person psychologically abuses a child if that person—
(a)causes or allows the child to see or hear the physical, sexual, or psychological abuse of a person with whom the child has a family relationship; or
(b)puts the child, or allows the child to be put, at real risk of seeing or hearing that abuse occurring.
(3)However, the person who suffers the abuse in subsection (2)(a) and
(b) is not regarded, under subsection (2), as having (as the case may be)—
(a)caused or allowed the child to see or hear that abuse; or
(b)put the child, or allowed the child to be put, at risk of seeing or hearing that abuse.
[96] I accept Ms Jerebine’s submission that s 11(3) does not apply here in the manner submitted on behalf of J. Section 11(3) is directed at preventing a victim of psychological abuse, who was not a perpetrator, from having responsibility for causing or allowing children to see the abuse which they suffered. However, in this case the Judge found that J was not only a recipient of but also the perpetrator of abuse under s 11(2) as is apparent from the parts of the judgment set out in [89] above.
[97]The fourth alleged error is not made out.
Fifth alleged legal error
[98] Mr Harrison submits the Judge failed to consider, as required, under s 57A(2) of CoCA whether the other orders made under CoCA would provide enough protection. Mr Harrison submits this is apparent because the Judge addressed the TPO first in the judgment before making the other orders.
[99] Ms Jerebine submits the Judge plainly considered whether or not CoCA would provide enough protection.
[100] The sequence in the written decision does not necessarily indicate that the Judge failed to address the necessity for the TPO by having regard to the CoCA orders in the proceeding. It is apparent from the Judge’s comment to counsel at the end of the evidence and before submissions were made when she said, “… I should raise with counsel that I am thinking about, but not committed to the course of making a protection order against both parents on the basis of the evidence that I have heard.
…”.33 The Judge was considering the possible need in the context of all the evidence.
The sequence of her written reason that followed does not provide evidence that the Judge did not turn her mind to the necessity of further protection by way of a TPO.
[101] Further, sitting in the specialist jurisdiction of the Family Court, the Judge can be taken to understand the scope, content and limits of a parenting order. The Judge was well placed to consider and determine whether the TPO would be needed having regard to the other orders in the proceeding.
[102] In any event, the applications in relation to other orders which were sought in the proceeding were all applications that related to D. None of those orders would have provided the protection which the Judge considered was necessary having regard to J’s conduct. Indeed, the Judge said that had she been able to, she would have considered providing supervision of J’s day-to-day care, because there was a risk of psychological abuse on her part given her animosity towards D, but it was impractical.34
33 J v D Notes of Evidence, above n 4, at 122.
34 J v D, above n 1, at [66].
[103]The fifth alleged error is not made out.
[104] Having determined that none of the five alleged legal errors is made out, the first ground of review fails.
Three additional arguments
[105] Mr Harrison makes three further submissions in addition to his submissions in support of the five claimed legal errors.
A failure to analyse applicable statute law
[106] Mr Harrison submits that the judgment contains no analysis of the applicable statute law either in terms of s 57A of CoCA or in terms of the FVA.
[107] While it may be of assistance for judgments to specifically identify particular statutory provisions, if the Judge has referred to the relevant factors in those provisions that can often be sufficient to support the legality of the decision. In this case I have determined that the Judge did refer to the relevant factors and she applied the relevant statutory tests.
Section 83(1) of the FVA
[108] Mr Harrison submits that in (briefly) addressing the making of the TPO, the Judge completely failed to “have regard to” either of the two mandatory considerations imposed by s 83(1) of the FVA, namely “perception” of, and “effect of behaviour” on, the victims of the alleged “psychological abuse on the part of the applicant”.
[109] I have already held that s 83 of the FVA is not imported into s 57A of CoCA. But in any event, the judgment does refer to the views of the children and to the effect of J’s behaviour, throughout the judgment:
(a)The parties had been in conflict in front of the children for some time;35
35 J v D, above n 1, at [13].
(b)“At the hearing, the level of hurt and anger between the parties was palpable. … Both parties struggled to remain composed and courteous as they gave evidence.”;36
(c)“Both before and after the orders were made there had been very serious conflict between the parties, which was witnessed or overheard at times by one or more of the children. After the orders were made the conflict continued …”;37
(d)“Given the parties’ demeanour in the courtroom this evidence was not difficult to accept. As [H] told the children’s lawyer:
“… If you get them started on each other they go off.” [H] then commented, “It’s like a poison potion between them, if you go in between them you get poisoned …”;38
(e)“The father was prepared to make concessions against his own interests, agreeing at times to things which did not reflect well on him, and making positive comments about the mother. The mother was not prepared to do this.”;39
(f)“The father alleged that the mother, for her part, had threatened him by making statements such as, “If anything happens between us, I will destroy you”. She had taunted him about his fears that she was having an affair and mocked him for perceived inadequacies.”;40
(g)“It is common ground that the mother arrived at the home unannounced [on 12 June 2019] and that during her interactions with [H] he became distressed, crying and making disturbed comments. He crawled under his bed.”;41
36 At [17].
37 At [18]
38 At [19].
39 At [22].
40 J v D, above n 1, at [33].
41 At [34]
(h)“The father said that the mother hit the children regularly with a spatula and had once broken a spatula in anger in front of the boys”;42
(i)The Judge found the explanation that the mother had not used it on the boys to be unconvincing;43
(j)Contact was fraught. “This was mainly because, whatever happened each party put the worst possible construction on the other’s behaviour.”;44
(k)Both parties used physical “discipline” on their boys;45
(l)“I find that they each abused and threatened each other, with a cruelty and intensity which was apparent when they gave evidence in this Court. If anything their behaviour was likely to be less constrained in the privacy of their own home.”;46
(m)“The worst aspect [of this case] is that the parties seem to have lost any concept of the importance of protecting their boys from their conflict.”;47
(n)“Both parties subjected each other to psychological abuse in the context of the breakdown of their marriage, and their children as well because of the cavalier or careless attitude they took to protecting their boys from this.”;48
(o)“I was concerned that when the mother was questioned about psychological abuse by the children’s lawyer, she seemed to have little appreciation of her own part in exposing the children to adult conflict.
42 At [36].
43 At [40]
44 At [37].
45 At [40].
46 At [43].
47 J v D, above n 1, at [44].
48 At [44].
She characterised this as trauma, but not psychological abuse. I find to the contrary exposing the children in this way was abusive.”;49
(p)“There is a risk of exposure to further psychological abuse while the children are in the other parent’s care.”;50 and
(q)“I find both parties used psychological abuse against the other around the time of the separation and the children were exposed to this.”51
[110] The perception of the children and/or D in relation to the above aspects of J’s behaviour, can clearly be inferred from the evidence set out above.
No separate assessment of J’s behaviour
[111] Mr Harrison further submits the evidence before the Judge did not address the nature and seriousness of J’s behaviour or effect of that behaviour in a discrete way in relation to J, but rather globally in respect of both parents in relation to one or more of the children.
[112] I do not accept that submission. A number of the findings and comments of the Judge referred to in [109] above were directed at J’s behaviour.
[113] Mr Harrison also submits that in the written submissions produced at the hearing, the main focus was on the disputed question of contact. He says the submissions of lawyer for the children did not suggest that they were in need of protection by means of a protection order made against J.
[114] However, the lawyer for the children did set out in her memorandum concerns regarding J’s behaviour:
(a)[C] thought his parents would get mad at each other and fight if they were at the same place for changeovers;
49 At [45].
50 At [46]
51 At [48].
(b)(As referred to above) [H] said that if his parents talk about each other they “go off, it’s like there’s a poison potion between them, and if you go in-between them you get poisoned”;
(c)The evidence indicates the parties might appropriately be considered “high conflict”;
(d)There are cross-allegations that the other parent has exposed the children to adult conflict and has involved the children in adult issues; and
(e)The children have reported exposure to yelling, smacking and parental conflict.
[115] Further, all of the conditions that lawyer for the children proposed should be included in the parenting order were directed at the behaviour of both parents, particularly as regards conflict in front of the children and involving the children in adult issues.
Natural justice claim – second ground of review
[116] J claims that she was treated unfairly when the Judge raised the prospect of making a TPO against her without adequate warning of the legal basis or grounds for making such an order, for which no application had been made. She also claims there was no evidence put before the Judge as to the need for a TPO and, further, that the children’s views were not obtained under s 6(2) of CoCA.
[117] Ms Jerebine submits that sufficient notice was given such that there was an opportunity to respond. Further, she submits the making of a TPO does not affect the children’s care so that s 6(2) does not apply. Ms Jerebine submits that, in any event the children’s views were considered. Ms Jerebine’s submissions on the second two points were supported by Mr Cooke in his submissions.
Was sufficient notice given?
Position prior to commencement of hearing
[118] Prior to the hearing it was only J who had applied for a protection order. J’s husband, D, opposed the making of a final protection order against him. But he did not cross-apply for a protection order against J.
[119] In his affidavit, D said that J had been involving the children in “adult issues”. As to any interactions between the two of them, D said he had not seen J for about nine months.
[120] In her affidavit in response, J disagreed with D’s complaint but did not give any evidence of any direct dealings between the two of them after the Judge made a TPO against D, that were of concern.
[121] There were written submissions for the hearing on behalf of J, D and by lawyer for the children. The submissions for D noted the previous “mutual allegations of psychological abuse” occurring prior to the making of a TPO against the husband at a time when “the parties had been living in the same home in a stressful unhappy situation for many months”. The submissions also refer to the mutual allegations of “discussing adult matters with the children”. Regarding domestic violence, D’s position was that the allegations were “historical in nature” and no longer ongoing by reason of the parties’ separation.
[122] The written submissions for J touched on the domestic violence issue and confirmed that J sought a final protection order against D.
[123] In the submissions of lawyer for the children, she identified issues to be resolved. They related particularly to whether contact or care of the children with or by D needed to be supervised and whether the TPO made against D should be made final. But she did also note there were “cross-allegations by each parent that the other parent has exposed the children to the adult conflict and has involved the children in adult issues”.
[124] Annexed to the submissions was a set of proposed conditions for the inclusion in any future parenting order. There were five conditions, which were all directed at both parents, namely:
(a)that they would ensure they are courteous and respectful to each other, particularly when the children are present;
(b)they will not discuss adult issues, the parental conflict or the court proceedings with the children or within their hearing;
(c)they will not criticise the other within the children’s hearing nor inappropriately question the children about their time in the other parent’s care;
(d)they will encourage support and promote the children’s relationship with the other parent; and
(e)they will communicate all relevant information about the children to the other.
At the hearing
[125] The hearing was set down for half a day. It took a full day. The evidence for D concluded at 4.15 pm. The Judge asked counsel if they wished to make brief closing submissions, noting that there was about 15 minutes each. Just before counsel for D, who was first to address the Court, began her submissions, the Judge said:
Actually, before commencing, in fairness I should raise with counsel that I am thinking about, but not committed to the course of making a protection order against both parents on the basis of the evidence that I have heard. And although I have not had the opportunity to check the mechanism I could use to form that, I think I have discretion to make a protection order when I make an order and [sic] the Care of Children Act. So one option that I’m considering is making a protection order against both parents. So if you would like to include that possibility in your submission I would be grateful.
[126] Counsel for D responded that if mutual protection orders were in place and court orders in place which defined D’s contact in some kind of a staggered basis, D thought the problems that existed at the moment would go away.
[127]In her closing submissions, counsel for J said:
This (inaudible) really high conflict and one would really like the parents to go to communication counselling, it’s very much needed. This is a file that has all the [sic] rule marks of being a big mess and I agree with you that things have broken down and things need to change.
[J] has been going to psychological counselling and she is very proactive in making change. …
[128] Counsel for J then noted that the Judge had said she was minded to make a protection order for both parents. There was then the following interchange between the Court and counsel for J:
QI have, yes. I have not committed to that, I’m willing to hear what you had to say about that. But I did, was concerned about the circumstances where Mother came back to the house after five days. It just seems like it was an accident waiting to happen.
A… I don’t think that in terms of Dad being scared of Mum, he’s definitely not scared of Mum, in terms of she does need to change in terms of –
Q I was thinking more of the boys.
AYes, I’m just yes. Well she’s actually going to counselling and doing those things.
Q … But I thought the boys were really insightful … so the boys weren’t saying: “Look it’s really Mum or it’s really Dad”. They were saying: “Look it’s both of them”.
A That’s later.
Q That bothered me.
A That’s a bit later. …
Q “Poison potion between them and if you go in-between them you get poisoned” [H] says.
AAnd that’s very recent, that is something that my client will be dealing with her psychologist over and she is committed to that and she said she was committed to that. So as such, she’s not – and she didn’t deny the fact that there’s been a negative effect on the boys from her conduct, Father denied that. So, in that sense, I do not see the
protection order, or certainly a final protection order is necessary in terms of Mother. I do think it’s necessary in terms of Father and for various reasons. He hasn’t accepted any responsibility.
[129] Counsel for the children noted that her concern was more about the impact of the conflict between the parents on the children. She submitted that the Judge was warranted in wanting to continue to protect the children from this point. Lawyer for the children submitted she could see how reciprocal protection orders, professional supervision and staged progression would all be, or provide, a measure of protection for the children.
[130]The Judge made the TPO against J in her judgment of 20 March 2020.
Discussion
[131] Mr Harrison accepts, as he must (having regard to the wording of s 57A) that the power to make an incidental TPO is one that can be exercised by the Court of its own motion. He also accepts that if the applications referred to in s 57A(1)(a) before the Judge are all made on an ex parte basis, then in granting those applications the Judge may make a TPO on an ex parte basis.
[132] However, in the context of an inter-partes hearing, Mr Harrison submits that the exercise of the “own motion” power must accord with and thus not breach, the principles of natural justice.
[133]In Arley v Deportation Review Tribunal,52 Elias J, as she then was, said:
Fundamental to the principles of natural justice is the requirement that where the circumstances of decision-making require that someone affected by it be given an opportunity to be heard, that person must have reasonable opportunity to present his case and reasonable notice of the case he has to meet. The more significant the decision, the higher the standards of disclosure and fair treatment.
52 Arley v Deportation Review Tribunal [1997] NZAR 208 (HC) at 220.
[134] Mr Harrison also referred the Court to Ngati Apa Ki Te Waipounamu Trust v Attorney-General where the Court of Appeal said:53
We begin with the proposition that the parties, those appearing before the [Māori Appellate Court] and those affected by the proceeding were entitled to a fair hearing. That entitlement includes the right to have adequate notice of the proceeding and a reasonable opportunity to present their own cases through evidence and submissions and to challenge the cases put up against them. … We refer to the holders of those rights in an extended way (and not simply as “parties”) given the special character of this jurisdiction. …
[135] Neither Ms Jerebine nor Mr Cooke suggest that the circumstances did not require that J be given an opportunity to be heard. They were obviously correct in that regard. J was affected by the making of the TPO (I will come to the detail shortly). The issue comes down to whether the opportunity to respond was a reasonable opportunity.
[136] Ms Jerebine submits that extensive notice may undo the benefit and purpose of s 57A and TPOs. She refers to the judgment of van Bohemen J in the interim relief application in this proceeding where the Judge referred to the purpose and principles of the FVA and that under the principles in s 4 decision-makers under the Act are directed to recognise that early intervention helps stop and prevent family violence.54 In the light of those principles, van Bohemen J considered the Court should be slow to intervene in the processes set out in the Act that envisage rapid decision-making, particularly when the safety and other interests of children may be at issue.
[137] Ms Jerebine also refers to the judgment in Surrey v Surrey where the Court of Appeal noted the principle in s 5 of CoCA that the child’s safety must be protected and, in particular, the child must be protected from all forms of violence. The Court of Appeal found that the DVA is concerned with providing protection from domestic violence quickly and inexpensively. Any findings of violence can be revised by the Family Court in the course of any later parenting decisions, if there is further evidence.55
53 Ngati Apa Ki Te Waipounamu Trust v Attorney-General [2004] 1 NZLR 462 (CA) at [18]. The appeal to the Privy Council in Ngati Apa Ki Te Waipounamu Trust v Attorney-General [2007] 2 NZLR 80 did not succeed and there was no issue in relation to the cited passage.
54 At [67].
55 Surrey v Surrey, above n 31, at [45].
[138] As is apparent from the passage set out above at [125], the Judge explicitly raised the issue with counsel before they made their submissions. Not only were counsel given the opportunity to respond, they did so.
[139] In considering the reasonableness of the opportunity to respond, part of the context is what is required of the person resisting a protection order. In Surrey v Surrey, the Court of Appeal considered the operation of s 14 of the DVA, the predecessor to s 79 of the FVA, in the context of an appeal involving a final protection order.56 The Court held that a court was to assess the risk of future violence on the basis of past conduct, informed by the subjective views of the victim and other relevant factors.57 Once an applicant has proved the existence of past violence and a reasonable subjective fear of future violence, the onus is on the respondent to raise countervailing factors that weigh against the need to grant a protection order.58
[140] J says she was denied the opportunity to raise countervailing factors. Counsel who appeared for J in the Family Court has sworn an affidavit. She says that at the time of the hearing, when the Judge advised she was considering making a protection order against both parents, she was not aware of s 57A of CoCA. She says that while she did advance a submission that no protection order against J was necessary, given how the hearing had proceeded and the late hour she was not in a position to address what she now knows to be the various requirements of s 57A.
[141] She says the evidence she led from J and her cross-examination of D were directed at whether the TPO against D should be made final and the contest over whether D’s contact with the children should be supervised or unsupervised. She says that given that those were the issues identified for the hearing, there was no need for her to lead evidence from J or to cross-examine D in order to demonstrate the lack of justification for a TPO against J.
[142] Counsel says that had she been given adequate advance notice of the possibility that a TPO might be made against J she would most certainly have cross-examined D
56 Surrey v Surrey, above n 31.
57 At [38].
58 At [43].
more extensively, directed to that issue. She would have led evidence from J in support of the proposition that she had not engaged in qualifying “family violence” and to show that, in any event, the making of an order was not “necessary” in terms of the statutory test. In this regard she notes that J had engaged of her own volition with a psychologist and she would have sought evidence from the psychologist in support of her position that the making of an order was not necessary in terms of s 79 of the FVA.
[143] I note Ms Jerebine’s submission that the TPO was made for the benefit of the children on the Judge’s finding that there was a risk of “exposure to further psychological abuse” while the children were in the other parent’s care. However, and in answer to that submission, had the available evidence now identified by counsel who appeared for J in the Family Court, been able to be put before the Court, there may well have been countervailing factors that provided an evidential basis for a submission that would have weighed against the need to grant a TPO.
[144] On the other hand in considering the reasonableness of the opportunity to respond I also note that the order is only a temporary one which may be later discharged. Section 110 of the FVA sets out the test and criteria for discharging a protection order, including: (a) the length of the period since the order was made; (b) the behaviour that led to the making of the order (including its nature, its seriousness, and how often violence occurred); (c) whether, and if so how, the respondent acknowledges their past behaviour that led to the making of the order; (f) any family violence or breaches of the order since it was made; (h) the risk of future family violence; and (i) whether areas of concern that led to the order are no longer evident. Section 110 arguably provides support for the view that extensive notice may not be required as a further review of behaviours is statutorily provided for.
[145] Does that mean that the decision to make a TPO lacks a significance which would require a higher standard of fair treatment?
[146] J has sworn an affidavit in this Court in which she describes what she says are detriments to her arising from the making of the TPO notwithstanding her ability to seek a review under s 110. She says, first, that the making of the TPO has obliged her to take, at considerable personal financial expense, legal steps to oppose the order
being made final. In the absence of those steps, the order would automatically be deemed to be a final one.
[147] Second, she says that the terms of the TPO both constrain her behaviour and compel her to subject herself to assessment for and attendance at a non-violence programme. She says she has completed that programme which required her personal attendance for (she thought) five hours overall.
[148] Third, J says she is concerned that the TPO, if allowed to stand, represents a significant black mark against her in professional terms. She says it is capable of having a major effect on her present teaching career and also presenting a major obstacle to her further progressing her career. She says if applying for promotion or another teaching job, she believes that she would have no alternative but to disclose the existence of the order, if allowed to stand. In addition, if the TPO continues in effect, this may affect her re-registration as a teacher by the Education Council.
[149] The issues in relation to J’s teaching career are raised in support of the submission that if I were to uphold either or both of the grounds of review, then the TPO should be quashed with retrospective effect. But the issues J raises are also relevant at this point where the Court is considering the significance of the decision and its impact on J.
[150] It is also arguable that even if the TPO were not made final, having regard to the wording of s 5A(1)(a) and (b) of the CoCA, if in the future an application were made to the Court for a guardianship order, a direction in relation to a guardianship dispute, a parenting order or a variation of a parenting order, the Court would be required to have regard to the fact that a TPO had been made and, in particular, the circumstances in which the order was made.
[151] In all those circumstances, I consider that J should have had the opportunity to provide evidence of countervailing factors for the Court to take account of in considering whether a TPO against J was necessary.
[152] It was up to counsel for J to seek the opportunity to put further evidence before the Court. She did not do so, but says she was unaware of the existence of s 57A. As a consequence, J did not have what she should have had, and that was a reasonable opportunity to respond. I do not consider J should be prejudiced by the inadequate way in which counsel representing her responded to the Court when the Judge raised the possibility of make a TPO against J. Unfairness has resulted from counsel not seeking the opportunity to put further evidence before the Court.
[153] I make it very clear that this decision should not be read as extending beyond its particular facts. If there had been evidence of an imminent risk to the safety of one or more of the children, then fair hearing rights would likely have been a secondary consideration. That is because the purpose of s 57A is to promote the safety of children; under s 4 of CoCA the welfare and best interests of a child must be the first and paramount consideration; and under s 5 of CoCA, a child’s safety is a primary consideration.
[154] In this case, as noted, going into the hearing there was no application by D for a TPO against J; and counsel for the children, while noting evidence as to the impact on the children arising out of past behaviour, did not herself submit that a TPO was required (although she agreed with the Judge once the Judge raised the prospect of making a TPO).
[155] Additionally, while the hearing took place on 4 March 2020, the decision making the TPO did not issue until 20 March 2020. While the decision was made promptly, it was not a case of a TPO being required to be made on the day of the hearing. This Court is acutely conscious of the pressures limiting available hearing time in the Family Court. However, in the particular circumstances J was required to be given, but was not given, a reasonable opportunity to put evidence before the Court to provide an evidential basis for a submission that a TPO against her was not necessary.
[156] For completeness, I turn to Mr Harrison’s submission that there was no evidence put before the Judge as to the need for a TPO. I do not accept that. Having regard to the evidence that was available on the day and which I have summarised in
[109] above, there was sufficient evidence. The real issue, as I have discussed above, was whether J should have had the opportunity to provide evidence to the effect that despite the evidence before the Judge, a TPO was not necessary.
[157] As part of the relief I will remit the matter back to the Family Court.59 It is therefore necessary to address the s 6(2) issue, which I turn to next.
Section 6(2) of CoCA – obtaining views of child
[158] Mr Harrison submits that in accordance with s 6(2) of CoCA the children (through lawyer for the children) were entitled to be given a reasonable opportunity to express (in advance) their views on the making of the TPO and to have those views taken into account. This did not happen.
[159] Ms Jerebine submits the proposition that the children’s views were required to be obtained before the making of the TPO seeks to impose too narrow a construction on the application of s 57A(2). She notes that the test in the section is whether or not the children require further protection in terms of their safety. Ms Jerebine submits that, in any event, children’s views in regard to their safety with respect to J were addressed and put before the Court.
[160] Mr Cooke submits the question of whether or not a TPO should have been made is not a matter on which children’s views should be ascertained. The making of a TPO did not affect the children’s care. This was the subject of separate orders. The TPO (and the final protection order in relation to D) went to regulate adult behaviour
– and in respect of the children – to provide a mechanism that would make it “safer” for the children when in the care of each parent – or should they be in the presence of both parents. But, in any event, Mr Cooke submits (agreeing with Ms Jerebine’s submission) the “views” of the children as set out in the reports of lawyer for the children were, by inference, available for the Judge in coming to her decision to make a TPO.
59 At [185] to [190] below.
[161]Section 6 of CoCA provides:
6 Child’s views
(1)This subsection applies to proceedings involving—
(a)the guardianship of, or the role of providing day-to-day care for, or contact with, a child; or
(b)the administration of property belonging to, or held in trust for, a child; or
(c)the application of the income of property of that kind.
(2)In proceedings to which subsection (1) applies,—
(a)a child must be given reasonable opportunities to express views on matters affecting the child; and
(b)any views the child expresses (either directly or through a representative) must be taken into account.
[162] As can be seen, s 6(1) of CoCA provides that the subsection applies to three situations. Part of s 6(1)(a), namely the role of providing day-to-day care for, or contact with, a child was one of the applications listed for hearing by the Family Court Judge.
[163] Section 6(2) then provides that in those proceedings a child must be given reasonable opportunity to express views on matters affecting the child and that any views so expressed, either directly or through a representative, must be taken into account.
[164] In her affidavit, the Principal Family Court Judge says since the implementation of CoCA, s 6(2) has almost invariably been interpreted as meaning that children’s views are ascertained in circumstances where there are substantive matters affecting them. She says that because of the complex nature of family dynamics and the myriad of considerations relevant to individual children, s 6(2) provides that their expressed views can be conveyed directly or through a representative, such as lawyer for the child.
[165] The Judge notes that while children’s views must be taken into account, the Judge is always mindful of the need to both protect them from any unnecessary
involvement in the dispute between their parents and the emotional toll which this takes, and to ensure there are no avoidable delays in having proceedings determined. She says that if the views of a child are sought in relation to interlocutory/procedural decisions, then an inevitable consequence will be even greater delay than is already occasioned.
[166] Consistent with that evidence is the submission made by Mr Cooke that there are situations where children’s views are not taken into account when a Family Court Judge makes orders under CoCA. He says this most obviously occurs when a without notice application is made for a parenting order. He refers to other situations when the Court is considering procedural matters, such as setting a case down for an interim or final hearing.
[167] Mr Cooke’s position is that the TPO is a substantive order. I accept that submission. While it is a temporary order and in that sense it is an interim order, it goes beyond the category of procedural and administrative decisions. However it does not follow that this categorisation of the order necessitates the obtaining of the views of the children.
[168] I accept Mr Cooke’s submission that the TPO was not an order that affected the children’s care. The question of the children’s care was the subject of separate orders made by the Judge. A TPO is a preventive tool that does not provide direct consequences to the child. Ms Jerebine refers the Court to a passage from Child Law where the authors discussed protection orders:60
1.Protection Orders
The FVA, like the DVA 1995 before it, allows for applications for protection orders as the tool to stop family violence (see Pt 4 of the Family Violence Act 2018). There are no consequences for a respondent in having a protection order in place. A protection order is a preventive tool. It is a warning for the respondent not to contact the protected person (without the consent of the protected person), not to act in any way that meets the definition of “family violence”. … A protection order is like a warning to the respondent to stay away and to alter behaviour.
60 Robert Ludbrook and Pauline F Tapp (eds) Brookers Family Law — Child Law, (online loose-leaf ed, Thomson Reuters) at 5(1).
[169] Because a TPO is not a matter ‘affecting the child’, I do not accept Mr Harrison’s submission that the Family Court Judge was required by s 6(2) of CoCA to obtain the views of the children.
[170] In any event, the children were asked by lawyer for the children for their views with respect to their safety and protection. For example, she asked the children the following:
(a)“I asked C if he has any worries or if there is anything he is uncomfortable about when he is with either of his parents. He thought his parents would get mad at each other and fight if they were at the same place for changeovers”;
(b)“When asked if he has any worries when he is with either of his parents, H told me that Mum has been asking questions about where he would like to live. H said that if his parents talk about each other they go off, it’s like there’s a poison potion between them, and if you go in between them, you get poisoned”;
(c)“I asked O if he has any worries when he is with either of his parents.
O said, “Not most of the time””; and
(d)The children have reported exposure to yelling, smacking and parental conflict.
Abuse of process?
[171] Although, as noted above, the Court did not receive the submissions on behalf of the Family Court, I asked counsel for J and counsel assisting to provide submissions addressing the consequences in law (if any) of J’s failure to appeal against the making of the TPO, in particular, but not only in relation to the grant of a remedy in the event that the judicial review otherwise succeeded. I thank counsel for their detailed and helpful submissions. In the end, I consider the answer is clear and accordingly it is not necessary for the judgment to contain an equally detailed discussion.
Which statute confers a right of appeal and in what terms?
[172] Counsel agree that the relevant provision governing the appeal is s 143 of CoCA. They are correct, for the following reasons.
[173] The TPO was made under s 79 of the FVA but in parenting order proceedings under CoCA and in reliance on s 57A of CoCA. Section 177(1) of the FVA, which governs appeals to the High Court, applies to a “decision of a Court, in proceedings under this Act, to: make or refuse to make an order; or dismiss the proceedings; or otherwise finally determine the proceedings”. Leave is not required. The FVA does not define “proceedings under this Act”.
[174] Section 143 of CoCA is expressed in similar terms. Section 143(1) provides that it applies to a decision of the Family Court or a District Court “in proceedings under this Act (other than criminal proceedings)” to: make or refuse to make an order (other than an interlocutory or interim order); or dismiss the proceedings; or otherwise finally determine the proceedings.
[175] Section 143(2) confers a right of appeal. Separately under s 143(3) an appeal against “an interlocutory or interim order” may be brought but only with the prior leave of the Family Court (or District Court as the case may be).
[176] Accordingly, the issue for appeal purposes is whether the TPO was made “in proceedings under CoCA” or in “proceedings under” the FVA. If the former, s 143 applies. If the latter, s 177 applies. The consideration is directed at the nature of the proceedings in which the order in issue was made, rather than the statutory source of the exercise of judicial power.
[177] In this case, the TPO was made in the context of an application for a parenting order under CoCA in terms of s 57A(1)(a)(iii). Additionally, as I have already determined, the source of the power was s 57A of CoCA (although the order in question was made under s 79 of the FVA).
[178] In those circumstances s 143 of CoCA governed the appeal. There is then the question as to whether or not the appeal could be brought as of right, or whether leave
was required in terms of s 143(3). The answer to that question turns on whether the TPO is categorised as either an “interlocutory order” or “an interim order”. Although CoCA does not define either of those terms, I accept counsel’s submission that having regard to the scheme of the FVA, a TPO (as I have said above in [167]) is an “interim order”.
[179] In other words, J could not appeal as of right. On any leave application she would have faced a potential difficulty in obtaining leave in the light of the available statutory pathway for a determination as to whether a final order should be substituted for the TPO.61
Judicial review versus appeal
[180] In the absence of a privative clause, the existence of a right of appeal cannot, as a matter of law, preclude an application for judicial review.62 Section 16(3)(a) of the Judicial Review Procedure Act 2016 (JRPA) provides that s 16 (governing the availability of relief) applies even if the applicant has a right of appeal in relation to the subject matter of the application.63 There needs to be something more, going well beyond the choice of judicial review as against an available right of appeal for an application for judicial review to be characterised as an “abuse of process”, or (if the grounds of review are made out) for relief to be refused by reason of the availability of a right of appeal that has not been exercised.64 There is no “something more” in this case.
Nature of arguments
[181] I accept Mr Harrison’s submission that J’s arguments were founded squarely on two of the traditional judicial review grounds: illegality (i.e. legal error) and unfairness/breach of natural justice.65 Although I have not upheld J’s illegality grounds of review, they were nevertheless quintessential judicial review grounds.
61 Family Violence Act, ss 147–150.
62 New Zealand Bill of Rights Act 1990, s 27(2).
63 See Zaoui v Attorney-General (No 2) [2005] 1 NZLR 690 (CA).
64 See Prasad v Indiana Publications (NZ) Ltd [2020] NZCA 628 (leave to appeal dismissed); and
Prasad v Indiana Publications (NZ) Ltd [2021] NZSC 66.
65 See discussion in Graham D. S. Taylor Judicial Review: A New Zealand Perspective (4th ed, LexisNexis, Wellington, 2018) at para 2.47.
Conclusion
[182] There are no consequences in law flowing from the process adopted by J in bringing an application for judicial review rather than appealing the decision of the Judge. Further, the process followed is irrelevant to the exercise of the Court’s discretion to grant relief having found that the natural justice/fair hearing ground has succeeded.
Summary of decision
[183] In summary, my decision on the two grounds of judicial review is that none of the five alleged legal errors is made out. The first ground of review fails.
[184] As to the second ground of review, J did not have a reasonable opportunity to be heard in response to the Judge’s indication that she was thinking of making a TPO against J. The second ground of review succeeds on that basis.
Remedy
[185] In relation to the breach of natural justice ground of review which I have upheld, J seeks both:
(a)A declaration that the TPO is, and at all material times has been, unlawful and invalid; and
(b)An order of, or in the nature of, certiorari quashing the TPO with retrospective effect.
[186] Mr Harrison further submits that this is not an appropriate case for the Court to make a direction that Judge Manuel (or any other Family Court Judge) reconsider the exercise of power under s 57A at this point of time. That is because
(a)invoking that provision was a purely judicial initiative.;
(b)D has never formally or informally sought the protection of a TPO;
(c)there was no application for a TPO made on the children’s behalf;
(d)in the hearing in this Court, almost a year after the decision of the Family Court Judge, D did not seek to uphold the TPO;
(e)the children make no claim through lawyer for the children that they are in current need of protection from J; and
(f)remitting the matter to a Family Court Judge is not, after all this time, in the best interests of the children.
[187] Ms Jerebine agrees with the submission that if either or both grounds of judicial review is or are established, then retrospective invalidity is appropriate.66 She does not, however, agree with the submission that a direction as to reconsideration under s 17(3) of the JRPA should not be made.
[188] I accept that, for the reasons set out in [148] – [150] above, regarding the effect on J, the TPO should be quashed with retrospective effect.67
[189] I do not accept Mr Harrison’s further submission regarding reconsideration by the District Court Judge. This is a case where the Judge made factual findings on the evidence available at the time that:
(a)both J and D exposed their children to psychological abuse, because they failed to protect their children from the impact of their mutual abuse;
(b)J had “little appreciation” she was having this impact on her children; and
(c)there was a continuing risk of exposure to psychological abuse while the children were in the other parent’s care.
66 With the exception of success on the part of J on the argument that s 85 of the Family Violence Act precluded mutual orders.
67 See also Martin v Ryan [1990] 2 NZLR 209 (HC) at 240.
[190] The use of s 57A is for the welfare and best interests of the children so as to ensure their safety. However, given the passage of time since the order was made and the other matters raised by Mr Harrison referred to in [186] above, rather than directing the Family Court to make a fresh determination under s 57A, my direction will be that the Family Court consider whether it is appropriate in the circumstances to give notice of an intention to assess the need for a TPO under s 57A.
Orders
[191]I make:
(a)A declaration that the TPO made against J in the decision of the Family Court Judge dated 20 March 2020 is, and at all material times has been unlawful and invalid;
(b)An order quashing the TPO, with retrospective effect.
[192] I further direct the Family Court consider whether it is appropriate in the circumstances now existing to give notice of an intention to assess the need for a TPO against J under s 57A of CoCA.
Costs
[193] I did not hear from counsel on costs. Costs are therefore reserved. If the parties are able to agree costs then a joint memorandum should be filed within 20 working days of the date of this judgment.
[194] In the event that costs cannot be agreed, J is to file a memorandum within 10 working days of the date for the joint memorandum. The respondents and both counsel appointed by the High Court are to file and serve their memoranda within a further 10 working days.
[195] Costs memoranda should not exceed five pages excluding any attachments. I will determine costs on the papers.
Gordon J
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5
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