J v Family Court at Auckland

[2020] NZHC 3429

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2020-404-000681

[2020] NZHC 3429

UNDER

The Judicature Review Procedure Act 2016

IN THE MATTER OF

an oral decision from the Auckland Family Court in relation to the Family Violence Proceedings

BETWEEN

J

Applicant

AND

FAMILY COURT AT AUCKLAND

First Respondent

AND

D

Second Respondent

Hearing:

23 November 2020

Appearances:

R E Harrison QC for the Applicant

M J McKillop for the First Respondent No appearance for the Second Respondent

S P Jerebine, counsel assisting the Court as Contradictor A Cooke, counsel for the child

Judgment:

18 December 2020

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 18 December 2020 at 4.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

J v FAMILY COURT AT AUCKLAND & D [2020] NZHC 3429 [18 December 2020]

Introduction

[1]    The applicant, J, seeks to review the decision of Judge A M Manuel in the Family Court on 20 March 2020 making a temporary protection order against J and in favour of her husband, D, the second respondent, and their three children in accordance with s 57A of the Care of Children Act 2004 (CoCA) and s 79 of the Family Violence Act 2018 (FVA).1  That  application  has  been  set  down  for  hearing  on 12 February 2021.

[2]    Pending the hearing of that application, J applies for an interim order staying the proceeding in the Family Court in relation to the temporary protection order but on the understanding that the order remains in place until the substantive application has been decided (“the application”). J also applies for costs for this application against the Family Court, the first respondent, although that application was not pursued at the hearing of J’s application for an interim order on 23 November 2020.

[3]    The Family Court abides the Court’s decision on the application but notes points for the assistance of the Court. It also wishes to be heard on costs.

[4]    D was not represented at the hearing of J’s application and abides the Court’s decision.

[5]The Court-appointed contradictor, Ms Jerebine, opposes J’s application.

[6]    Counsel for the child, Ms Mikkelson, filed written submissions that take a neutral position on whether an interim order should be made. Because Ms Mikkelson was unable to appear at the hearing on 23  November 2020,  the Court  appointed  Mr Cooke counsel for the child for that hearing. In his oral submissions, Mr Cooke highlights the findings of Judge Manuel regarding the harm the parents’ behaviour had caused their children which, he submits, support the Judge’s decision to make the temporary protection order.

1      J v D [2020] NZFC 2253 (Family Court decision).

[7]    Because the temporary protection order had been made principally to protect the children of J and D, I considered it appropriate to appoint Mr Cooke to represent the children’s interests, notwithstanding the submission of Mr Harrison that counsel for the child were not required given the appointment of Ms Jerebine and the essentially legal nature of the issues. For the same reason, I am satisfied that counsel for the child should be appointed for the hearing of the application for review and appointed Mr Cooke and Ms Mikkelson for that purpose.

How the temporary order came to be made

[8]    J and D have been husband and wife, but their marriage has broken down. They have three children aged 11, 10 and 7 years old.

[9]    On 21 June 2019, J obtained a protection order under ss 13 and 14 of the Domestic Violence Act 1995 against D to protect herself and her children. She also obtained an interim parenting order which gave J day to day care of the children and allowed D only supervised contact with the children.

[10]   J then applied to make the protection order permanent and for the supervision of D’s contact with the children to continue. D opposed both applications.

[11]   Judge Manuel heard the applications on 4 and 20 March 2020 and issued an oral judgment on 20 March 2020.2 Judge Manuel made a final protection order against

D. She also made a temporary protection order against J under s 57A of the CoCA, even though the parties had not applied for such an order.

[12] J has applied to review the temporary protection order against her on the grounds of breach of natural justice and error of law. As noted at [1] above, that application is to be heard on 12 February 2021.

[13]   J is concerned that unless an interim order is granted the Family Court will make a final protection order because of the requirements of the FVA and the steps the Family Court has taken to date.

2      Family Court decision, above n 1.

Relevant provisions of Care of Children Act 2004 and Family Violence Act 2018

[14]   Under s 57A(2) of the CoCA, if an application has been made for a guardianship order or a parenting order, or a variation to one of those orders, and no application has been made for a temporary or final protection order, the Family Court may make a temporary protection order under s 79 of the FVA if satisfied that orders made under the CoCA will not provide enough protection to a child or their parent.

[15]   Section 57A(3) of the CoCA provides that ss 76 to 78 of the FVA apply to a temporary order made under s 57A of the CoCA as if the order were made following an application without notice.

[16]   The effect of these provisions of the CoCA is to ensure that if a temporary protection order is made under s 57A(2) of the CoCA it is subject to the same processes that apply to temporary protection orders made without notice under the FVA.

[17]   Under s 76 of the FVA, but subject to ss 147 to 155 of that Act, a protection order made without notice becomes final by operation of law three months after the date of the order being made unless sooner discharged.

[18]   Under s 147 of the FVA, a person against whom a temporary protection order is made may notify the Family Court that they wish to be heard on whether a final order should be substituted for the temporary order. If such notice is given, the Registrar must assign a hearing date which must be as soon as practicable but at least within 42 days of the notice, unless there are special circumstances.

[19]   Under s 148 of the FVA, but subject to s 149, a temporary order becomes final by operation of law three months after the date it was made unless the person against whom the order was made has given notice under s 147. If the temporary order becomes a final order, the final order takes effect immediately.

[20]   Under s 149 of the FVA, a temporary order cannot become final unless the person against whom the order was made has been served with the order no later than 11 days before the expiry of the three months after the order was made. The period

for service may be extended by the Court but not beyond a total further period of three months. If the order is not served within six months of being made, it lapses.

[21]   Section 150 of the FVA provides that if the Family Court considers there is good reason why a temporary order should not become final without a hearing, it may direct that there be a hearing, in which case the Registrar must assign a hearing date which is as soon as practicable.

[22]   Section 153 of the FVA provides that, at the hearing, the Family Court may discharge the temporary order, make the temporary order final – with or without variation – or, on good cause being shown, adjourn the hearing to a fixed time and place.

[23]   The effect of these provisions of the FVA is to ensure that a temporary protection order is either made final within three months of the order being made or, if the period for service is extended or a hearing is held, is made final or otherwise disposed of as soon as possible thereafter.

What happened with the temporary protection order made against J?

[24]   The temporary protection order was made on 20 March 2020. The period of service was later extended to 7 September 2020.

[25]   On 3 September 2020, J’s solicitor filed an appearance under protest to jurisdiction in the Family Court on the grounds that the temporary protection order had not been served personally on J as required by rr 107(1) and 206(4) of the Family Court Rules 2002, together with notice of J’s intention to appear in accordance with  s 147 of the FVA, and an affirmation in support from J dated 3 September 2020.

[26]   In her affirmation, J said that she opposed the temporary order being made final and that she considered the temporary order was wrongly made. J also said that she had filed an application for judicial review of the Family Court decision in the High Court.

[27]   In a memorandum dated 21 September 2020, the Registrar of the Family Court wrongly advised Judge Burns that J had failed to file an affidavit in support of her notice of intention to appear as required by r 315(4) of the Family Court Rules. The memorandum noted that the final protection order was due to be made that day. Judge Burns struck out J’s notice of intention to appear for failure to file an affidavit in support.

[28]   A final protection order dated 21 September 2020 was prepared but was not issued until 7 October 2020.

[29]   Also, on 7 October 2020, the Registrar advised Judge Burns of the error regarding the affirmation filed by J. As a consequence, Judge Burns set aside the strike out order, discharged the final protection order and gave timetable directions for the filing of further affidavits by J and D and, if D filed an affidavit, for a hearing in the Family Violence List. The Judge directed that if no affidavit was filed by D, the file was to be placed before Judge Manuel to consider whether to discharge the temporary order or make other directions.

[30]   Judge Burns’ orders and directions were not conveyed to J until Mr Harrison advised the Registrar on 20 October 2020 that he had been instructed to act for J.

[31]   Mr Harrison then sought, but was unable to obtain, the agreement of Crown counsel to an interim order staying the Family Court process being made by consent.

[32]   On 5 November 2020, Mr Harrison made an oral application on J’s behalf at the Judicial Review List hearing in the High Court for an interim order staying the Family Court proceeding as it relates to the temporary protection order, but without interfering with the order itself. In a minute issued that day, Palmer J made directions and set down the application for hearing on 23 November 2020.3

[33]It is not known if any further steps have been taken in the Family Court.

3      J v D HC Auckland CIV-2020-404-681, 5 November 2020 (Minute No 3 of Palmer J).

The basis of the application for interim relief

[34]   J makes the application on the basis of s 15 of the Judicial Review Procedure Act 2016 and Rule 30.4 of the High Court Rules 2016 and the inherent jurisdiction of the Court.

[35]Section 15(1) of Judicial Review Procedure Act 2016 provides:

At any time before the final determination of an application the court may, on the application of a party, make an interim order of the kind specified in subsection (2) if, in its opinion, it is necessary to do so to preserve the position of the applicant.

[36]   Section 15(2)(b) provides that interim orders may be made prohibiting or staying any proceeding in connection with any matter to which the application relates.

[37]   Section 15(3) prohibits an order being made against the Crown if it is respondent. Counsel agree that “the Crown” does not include the Family Court. That must be correct. If “the Crown” included courts, s 15(2)(b) would have little effect.

[38]   Rule 30.4(1) of the High Court Rules provides that when an application is made for a remedy under Part 30, the Court may make an interim order on whatever terms and conditions the Court considers just.

Discussion

[39]   Section 15(1) of the JRP Act is similar to its predecessor provision, s 8(1) of the Judicature Amendment Act 1972, of which Cooke J said in Carlton & United Breweries Ltd v Minister of Customs:4

In general the Court must be satisfied that the order is necessary to preserve the position of the applicant for interim relief – which must mean reasonably necessary. If that condition is satisfied … the Court has a wide discretion to consider all the circumstances of the case, including the apparent strength or weakness of the claim of the applicant for review, and all the repercussions, public or private, of granting interim relief.

4      Carlton &United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) at 430.

[40]   Counsel agree the approach in Carlton continues to apply and that the first question for consideration is whether J has a position to preserve. If I conclude that she does, then, the Court has a wide discretion to consider the wider circumstances of the case, including the strengths and weaknesses of the case. Ms Jerebine, referring to the decision of Gordon J Lowe v Auckland Family Court,5 adds that in cases concerning the day-to-day care of a child, there is the additional consideration of the welfare and best interests of the child.

[41]   Mr Harrison does not take issue with Ms Jerebine’s addition but says there is no prejudice to the children in this case. If an interim order is made, J will continue to be subject to the temporary order until the application for review has been resolved.

[42]   Mr Harrison also says that, even if the Court is not satisfied that J has a position to protect, it can make an interim order in the exercise of its broader discretion under r 30.4 of the High Court Rules and its inherent jurisdiction.

Does J have a position to preserve?

[43]   Mr Harrison submits that the position J seeks to preserve is in relation to her substantive judicial review application and in relation to her on-going interests as a litigant before the Family Court.

[44]   With regard to the judicial review application, Mr Harrison says that J is currently subject only to the temporary protection order, the validity of which has been challenged in her review application. J wants to preserve her current position of not being vexed by and embroiled with contested proceedings over the making of a final order. More generally, and as a person with limited means, J seeks to avoid the time and cost of having to comply with the directions of Judge Burns regarding the filing of further affidavits and of participating in a hearing over whether the temporary order should be made final when, if her challenge to the temporary order is upheld, the whole process would have been unnecessary.

5      Lowe v Auckland Family Court [2017] NZHC 209 at [18].

[45]   Ms Jerebine submits that J does not have a position to preserve. She submits that J’s substantive position will not be affected regardless of whether or not the Family Court proceeds to make the temporary order final or discharges the order. If the latter, the order is gone. If the former, the content of the final order will be the same as that of the temporary order so will impose no additional burden on J. If the High Court later finds that the temporary order was not validly made, that finding will also apply to any final order based on the temporary order or the final order can be appealed. Mrs Jerebine also submits that there are no consequences for J in having a protection order in place because a protection order is essentially a preventive tool that warns the person to whom it applies not to contact the protected persons or to engage in family violence behaviour.

[46]   Ms Jerebine submits that J’s position is analogous to the applicant in Lowe, where Gordon J held that, although the position of the applicant in that case might change through on-going proceedings in the Family Court, that was not the sort of position that could be protected by interim relief, and interim relief was not necessary to protect that position.6 Ms Jerebine also notes that in Lowe Gordon J did not accept that the imposition of stress from concurrent proceedings in the Family Court and High Court was unusual or the same thing as having a position to preserve by way of interim relief.7 Ms Jerebine submits that this is much the same as J’s concern about being vexed by and embroiled in further Family Court proceedings.

Discussion

[47]   I do not consider that the situation is quite as straightforward Ms Jerebine suggests. When deciding whether to make a temporary order final, a Family Court judge is doing more than deciding whether to discharge or to confirm the temporary order. First, as contemplated by Judge Burns’s directions, fresh evidence can be called which means that the additional substantive reasons for having or not having an order may be considered. Secondly, a Family Court judge’s options under s 153 of the FVA include making variations to the order. While it may be standard to make the final order on the same conditions as the temporary order, that is not a given. The Judge

6      At [27]-[28].

7 At [31].

may decide to impose conditions that are more or less burdensome to the person subject to the order. Thirdly, whether or not on the same terms, being subject to an order that lasts forever absent an appeal or other order of the Court is a different proposition to being subject to an order that is deliberately intended to be of short duration.

[48]   For these reasons, I am satisfied that J does have a position to preserve that extends beyond avoiding the turmoil of involvement in court proceedings that may later prove to have been unnecessary. That position is not to have a permanent order placed on her, possibly on terms more rigorous than those of the temporary order, until the validity of the temporary order has been determined.

[49]   In addition, I do not consider J’s position to be analogous to that of the applicant in Lowe. In Lowe, the applicant applied for an order staying proceedings she had brought in the Family Court pending determination of her application to review various interlocutory decisions taken by the Family Court which the applicant alleged had been in breach of natural justice. Justice Gordon observed that if the applicant was successful in that review the likely consequence was that any flawed decisions of the Family Court would be quashed and re-heard, and the applicant would have an opportunity to put forward submissions.8 In these circumstances, Gordon J was unable to see how a refusal of interim relief would disadvantage the applicant.9

[50]   The position in the present case is somewhat different. The only aspect of the Family Court’s processes that J seeks to stay concerns the making of the temporary order final. There are no on-going proceedings that would be stayed by the order sought.

[51]   I am also satisfied that the present case dūiffers significantly from Baker v Waitangi Tribunal where Churchman J declined to stay a vote by hapu of Whakatōhea to determine support for continued settlement negotiations with the Crown pending the outcome of judicial review proceedings by one group challenging the validity of

8 At [27].

9 At [27].

decisions taken in deciding the voting process.10 In that case, there was a much wider group of interests at stake and ample scope for the outcome of the judicial review process to be taken into account in future processes.11

[52]   In addition, and as Mr Harrison submits, in both Lowe and Baker, the weakness of the claims for interim relief clearly influenced those decisions.

[53]   For these reasons, I am satisfied J has a position to preserve in terms of s 15(1) of the JRP Act.

Apparent strengths and weaknesses of the claim

[54]   Mr Harrison says J’s essential complaint with regard to the alleged breach of natural justice is that she was treated unfairly when Judge Manuel raised the prospect of imposing an order against J without adequate warning of the legal basis or grounds for making a temporary protection order for which no application had been made.  Mr Harrison also says that this ground will be developed more fully at the hearing of the substantive application.

[55]   With regard to the alleged errors of law, Mr Harrison says that the threshold condition for an order under s 57A of the CoCA had not been met because this was not a case where no application had been made to the Court for a protection order. Mr Harrison submits that Judge Manuel also failed to consider whether, had an application been made, she would have made a protection order in respect of D and, independently, their children, and failed to have regard to the requirements for making a protection order set out in s 79 of the FVA. Mr Harrison also submits that Judge Manuel failed to consider whether orders made under the CoCA would have provided adequate protection for the intended beneficiaries of the Trust.

[56]   Mr Harrison further submits that, in imposing “mutual” orders on J and D, Judge Manuel was acting inconsistently with s 85 of the FVA. That section provides that if the Court grants an application for a protection order, it must not also make a

10     Baker v Waitangi Tribunal [2018] NZHC 2348.

11 At [39].

protection order in favour of the respondent unless the respondent had applied for a protection order and the Court has determined that application under the FVA.

[57]   Ms Jerebine submits that Judge Manuel gave sufficient notice of her intention to make a temporary protection order against J and that counsel has adequate time to take instructions and to respond, and that counsel could have sought an adjournment if they needed more time. She also submits that it is in the nature of Family Court proceedings that Family Court Judges have to respond to the immediacy of events and have regard to the need to ensure the safety of persons at risk of family violence.

[58]   With regard to the alleged errors of law, Ms Jerebine submits s 57A(1)(b) can reasonably be read as including a situation where no application has been made for an order with respect to a particular person and that Judge Manuel made factual findings that had regard to the requirements of s 79 of the FVA. She also submits that s 85 of the FVA is not applicable because s 57A of the CoCA provides only that ss 76 to 78 of the FVA “and with all other necessary modifications”12 apply to temporary protection orders.

[59]   Mr Cooke also submits that Judge Manuel acted appropriately having regard to her finding that both parents had lost any concept of protecting their boys from their conflict.

Discussion

[60]   There is currently some dispute about the admissibility of evidence of what did and did not happen at the hearing. That will need to be resolved at or before the hearing of the substantive application. For that reason, I refrain from reaching any firm view on whether what happened at the hearing may have amounted to a breach of natural justice. For present purposes, I accept that proposition is arguable. I do not put it higher than that, however, bearing in mind that s 57A of the CoCA clearly contemplates a Family Court Judge acting on her or his own initiative to make a temporary protection order in appropriate circumstances.

12     Section 57A(3).

[61]   The legal issues that Mr Harrison raises are complex and require consideration of the policy behind the CoCA and the FVA and the interrelationship of those two Acts. No doubt those considerations will be more fully explored at the hearing of the substantive application.

[62]   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]   Whether s 85 of the FVA applies also raises complex questions of policy and statutory interpretation. In addition to the technical question of whether the section applies to an order made under s 57A of the CoCA, there must at least be a question as to whether, having regard to the policy behind s 85, a Judge imposing an order under s 57A of the CoCA, can impose “mutual” orders when no application has been made for an order against one of the parties to be subject to the orders.

[64]   For these reasons, I do not accept Ms Jerebine’s submission that the applicant does not have a strong case. To the contrary, I consider that there are serious questions to be considered as to whether s 57A of the CoCA and relevant provisions of the FVA provided sufficient statutory basis for the temporary protection order made by Judge Manuel.

[65]   Accordingly, I am satisfied that the strength of the case is in favour of making an interim order.

Other repercussions of granting interim relief

[66]   Ms Jerebine and Mr Cooke submit, with some force, that it would be inconsistent with the policy of the FVA for the High Court to freeze the Family Court process while an application for judicial review is pursued. Although the Family Court abides the Court’s decision, similar considerations may have influenced Crown counsel’s reluctance to agree to interim relief by consent.

[67]   I agree with Ms Jerebine and Mr Cooke that the purpose and principles of FVA, as set out at ss 3 and 4 of the Act, are to stop and prevent perpetrators from inflicting violence on family members and to keep victims, including children, safe. Under the principles in s 4, direct decision makers under the Act are directed to be aware of the behaviours than indicate family violence, to recognise that behaviour that may appear minor or trivial can be part of a harmful pattern and that children are particularly vulnerable to family violence, including seeing or hearing violence against others, and also to recognise that early intervention helps to stop and prevent family violence.

[68]   I agree that, in the light of those principles, 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. That includes the processes for making a temporary protection order permanent.

[69]   The specialist jurisdiction of the Family Court and the expertise and experience of the Family Court Judges are further reasons for the High Court to be cautious in intervening. Another consideration is that both the FVA and the CoCA have their own processes for appealing decisions made under those Acts.

[70]   These considerations all weigh generally against granting orders that would the Family Court from carrying out its responsibilities under the FVA and under the CoCA. However, the considerations do not have particular application in the circumstances of this case.

[71]   The consequence of freezing the process for making the temporary order final is that the temporary order remains in effect. While J has protested the jurisdiction of the Family Court on the basis that the temporary order was not served in accordance

with Family Court Rules, she does not deny that she has been served. The protest will only be effective if upheld by the Family Court. In the meantime, the temporary order has not lapsed and, in accordance with s 107 of the FVA, continues in force until it is made a final order or is discharged. As a consequence, even if interim relief is granted, the children and D retain the benefit of the order. Accordingly, there is no prejudice to the interests of the children as the written submissions of Ms Mikkelson acknowledged.

[72]   It is also relevant that, although the proceeding between J and D remains before the Family Court, most of the substantive issues regarding on-going parenting arrangements appear to have addressed in the judgment Judge Manuel issued on 26 June 2020, following a further hearing on 28 May 2020.13

[73]   It is also relevant that  that  the  application  for  review  is  to  be  heard on 12 February 2021. The period of delay, therefore, is not significant particularly when the Christmas / New Year break is taken into consideration.

[74]   Logic also suggests that if the validity of the temporary order is at issue, it would be sensible to determine the validity of that order before making the order final. It would also avoid the difficult situation that could arise if, having considered fresh evidence, the Family Court considered that a final order should be made but it were then held that the temporary order on which the final order is based was improperly made.

[75]   For these reasons, I do not consider that the repercussions of granting interim relief are significant in the circumstances of this case.

Result

[76]   For all the above reasons, I am satisfied that J has a position to protect with respect to the Family Court’s decision as to whether the temporary protection order made against J by Judge Manuel on 20 March 2020 should become a final order, and

13     J v D [2020] NZFC 4799.

that it would be appropriate in the circumstances to stay the Family Court’s processes with respect to that decision.

[77]Accordingly, I make the following order:

I stay the proceeding of the Family Court in relation to the temporary protection order made against J by Judge Manuel on 20 March 2020 pending the determination of J’s application for judicial review of that order, or until further order of this Court.

Costs

[78]I reserve costs as requested by Mr Harrison.

G J van Bohemen J

Solicitors/Counsel:

R E Harrison QC, Auckland

M K Macnab, Barrister, Auckland Bankside Chambers, Auckland
Sheila McCabe Barrister, Auckland Douglas MA Burgess, Auckland Crown Law Office, Wellington APLS Lawyers, Auckland