JM v District (Family) Court at Christchurch
[2018] NZHC 1716
•11 July 2018
NOTE: PURSUANT TO S 437A OF THE ORANGA TAMARIKI ACT 1989, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
PUBLISHING-JUDGMENTS/
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2018-409-319
[2018] NZHC 1716
BETWEEN JM
Applicant
AND
THE DISTRICT (FAMILY) COURT AT CHRISTCHURCH
First Respondent
CHIEF EXECUTIVE OF ORANGA TAMARIKI – THE MINISTRY FOR CHILDREN
Second Respondent
Hearing: 10 July 2018 Appearances:
A McKenzie for Applicant
Appearance of First Respondent Excused
C Hutchinson and C McKay for Second RespondentJudgment:
11 July 2018
JUDGMENT OF MANDER J
[1] The applicant, JM, seeks interim orders staying an order of the Family Court varying access arrangements in respect of his daughter and restoring his former weekly access to the child. He claims the interim orders are necessary in order to preserve his position pending judicial review of the Family Court’s order, or the substantive hearing in the Family Court of the second respondent’s, the Chief Executive of Oranga
JM v THE DISTRICT (FAMILY) COURT AT CHRISTCHURCH [2018] NZHC 1716 [11 July 2018]
Tamariki (the Chief Executive), application to vary his access. This is set down for hearing on 30 July 2018.
Background
[2] On 8 April 2013, the Family Court made a declaration that the child, born on 27 June 2011, was in need of care and protection.1 The child had previously been placed with a Ministry of Social Development caregiver on 9 March 2012. Since 9 July 2013, custody and additional guardianship orders for the child have been made in favour of the Chief Executive.
[3] On 31 October 2013, the Family Court made an access order in favour of JM granting him supervised weekly access. In November 2014, the child was placed with her current caregivers. This is a permanent care arrangement.
[4] On 16 November 2016, the Chief Executive applied to reduce JM’s weekly access to fortnightly access for two and a half hours (during the school term) and weekly access of five hours (during the school holidays). That application was opposed by JM. Between December 2016 and October 2017, a number of pre-hearing conferences were held regarding the variation application. The matter was finally set down for a two day defended hearing on 7 and 8 May 2018. It was anticipated that substantive issues regarding JM’s access and the child’s wellbeing would be determined at that time.
[5] On 26 December 2017, the child was involved in a car accident along with her caregivers and foster brother. The child had emergency surgery on Boxing Day for a perforated bowel and was hospitalised. She has not psychologically recovered from the car accident and is suffering from anxiety. It is not necessary to go into the details of the child’s difficulties, other than to note it has manifested itself in “night terrors”, “toileting difficulties”, “acute sensitivity to loud noises” and affected her schoolwork and school attendance. The child is currently being seen by a psychologist regarding her anxieties.
1 Oranga Tamariki Act 1989, s 14(1)(a), (b) and (f).
[6] Despite the parties being prepared and ready for the two day defended hearing on 7 May, the hearing was unable to proceed because of an administrative error in the Family Court. That failure resulted in the Chief Executive making an ex parte application to vary the current access order on an interim basis until a two day hearing could be held.
[7] On 9 May, Judge Riddell granted the application limiting JM’s access to two and a half hours on a monthly basis. It is that determination by the Family Court which is the subject of the judicial review application. On 29 May, the fixture in the Family Court was rescheduled for 30 and 31 July. Notwithstanding this, JM filed an amended statement of claim together with an application for interim orders on 8 June.
Jurisdiction for relief
[8] JM brings his application under s 15 of the Judicial Review Procedure Act 2016 (the Act). That provides as follows:
15 Interim orders
(1)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.
(2)The interim orders referred to in subsection (1) are interim orders—
(a)prohibiting a respondent from taking any further action that is, or would be, consequential on the exercise of the statutory power:
(b)prohibiting or staying any proceedings, civil or criminal, in connection with any matter to which the application relates:
(c)declaring that any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by the passing of time before the final determination of the application, continues and, where necessary, that it be deemed to have continued in force.
...
[9] The type of interim orders that may be made by this Court pending a determination of the judicial review application under the Act are set out in subs (2). In his written submissions, Mr McKenzie on behalf of JM sought to rely on s 15(2)(b).
He contended that the “disputed variation” should be stayed in the interim until either the application for judicial review by this Court was decided or the Chief Executive’s application to vary JM’s access finally determined. However, I doubt s 15(2)(b) has application to JM’s present situation.
[10] The decision JM seeks to review is the order made by the Family Court in response to the ex parte application filed on 9 May. Insofar as that application is to be viewed as a proceeding, it has now been determined and, clearly, JM is not seeking to stay the extant on-notice application to vary access which is to be the subject of the rescheduled two day fixture commencing on 30 July. There is therefore no proceeding which JM can seek to stay or prohibit in order to preserve his position.
[11] After raising this difficulty, I granted Mr McKenzie the opportunity to file further submissions. Mr McKenzie now relies on s 15(3)(b)(i) of the Act. Subsection 3 provides as follows:
(3)However, if the Crown is a respondent,—
(a)the court may not make an order against the Crown under subsection (2)(a) or (b); but
(b)the court may, instead, make an interim order—
(i)declaring that the Crown ought not to take any further action that is, or would be, consequential on the exercise of the statutory power:
(ii)declaring that the Crown ought not to institute or continue any proceedings, civil or criminal, in connection with any matter to which the application relates.
[12] Prior to the introduction of s 8(2) in the Judicature Amendment Act 1972, which is now s 15(3), the Court did not have the power to grant interim orders against the Crown. Even now, the Court may only make a declaration of what the Crown ought not do pending the determination of the application for review. An order under subs (3) is not coercive, although, ordinarily, such an order will usually achieve the object of interim relief.
[13] Mr McKenzie submitted that Judge Riddell’s decision involved the exercise of a statutory power conferred by the Oranga Tamariki Act 1989, and that this Court can make an interim order under s 15(3)(b)(i) declaring that the Crown, Oranga Tamariki, ought not take any action consequential to the exercise of that statutory power. In effect, he submits that I could, in the face of an order issued by the Family Court, declare on an application for interim orders that Oranga Tamariki ought not comply with the Court’s current order. Even if such a jurisdiction is available, I consider that it would be inappropriate and unrealistic to expect this Court to exercise its discretion in such a way in these circumstances.
[14] Because of reasons going to the substance of the application for interim orders, it is not necessary for me to come to any concluded view regarding whether I have jurisdiction under s 15 of the Act. The order sought by JM’s application for interim relief would have the effect of quashing the Family Court decision that is the subject of his judicial review application. As observed, the making of an interim order of the kind sought by JM would require the overturning of the order of an inferior Court on an interlocutory application on an interim basis. It would require me to effectively decide the judicial review application.
[15] The situation is akin to Prakash v Auckland District Law Society.2 In that case the plaintiff sought interim orders under s 8 of the Judicature Amendment Act 1972 that, pending the determination of his substantive application for review, a judgment granted in the Auckland District Court against him be set aside. In declining to make an interim order, Rodney Hansen J observed:
[9] ... Mr Haines’ further submission was that the power under s 8 should not be exercised where the making of the order would grant to the plaintiff the relief which should be granted in the substantive proceeding. He pointed out that the order sought by the plaintiff would not simply preserve the position of the plaintiff but improve it.
[10] In my view, the submissions of Mr Haines are well founded. The order which the plaintiff seeks would not only provide the plaintiff with relief which should be available to him only at the substantive hearing, but would be final and irrevocable in its effect. At an interim stage and without any opportunity to evaluate the merits of the substantive proceeding, the Court would be setting aside the judgment of the District Court. That is not interim relief. It is the ultimate remedy.
2 Prakash v Auckland District Law Society [2000] NZAR 667 (HC).
[16] Similar considerations apply in the present case. Presently, JM and, indeed, the Chief Executive are bound by the Family Court’s order which limits his access to monthly contact. As the matter comes before me, that is the status quo.
Validity of ex parte order
[17] Leaving the jurisdictional issue to one side, the argument between the parties focussed on the validity of the ex parte order made by the Family Court. Mr McKenzie identified that the Chief Executive purported to rely on r 276(1)(b) of the Family Court Rules 2002 (the Rules) to make an application without notice to vary the existing access order. The Chief Executive acknowledges that reliance on that rule was in error, and that r 276 does not provide for that type of application to be made to the Family Court without notice.
[18] However, Ms Hutchinson, on behalf of the Chief Executive, submitted the Family Court did have jurisdiction to make such an order varying access on an ex parte basis. She identified r 220(2)(a)(i) as allowing the Chief Executive, in the circumstances which prevailed at the time, to make an application to vary access without notice to JM. Ms Hutchinson submitted the test for making without notice applications under r 276(1)(b) and r 220(2)(a)(i) are the same. It followed, in her submission, that the Family Court’s decision would have been the same and no arguable or justiciable issue arises from the Chief Executive’s error.
[19] The application to vary JM’s access was made pursuant to s 125(1)(h) of the Oranga Tamariki Act 1989, which provides for an application to be made to the Family Court for the variation of an access order. The Chief Executive relies upon r 220(2)(a)(i), set out in pt 4 of the Family Court Rules, which deals with interlocutory matters to make that application after the March fixture did not proceed. Rule 220 provides as follows:
220 Applications that may be made without notice
(1)An application need not be made on notice if the family law Act or District Courts Rule under which it is made provides, or any other of these rules provide, that the application, or an application of that kind, may be made without notice.
(2)An application need not be made on notice if subclause (1) does not apply and the application, or an application of that kind, is not expressly required to be made on notice by the family law Act or District Courts Rule under which it is made or by any other of these rules, and the court is satisfied that—
(a)the delay that would be caused by making the application on notice would or might entail,—
(i)in proceedings under the Oranga Tamariki Act 1989, serious injury or undue hardship, or risk to the personal safety of the child or young person who is the subject of the proceedings, or any person with whom that child or young person is residing, or both; and
...
[20]In making his order, Judge Ridell stated:
It is clear that [the child] is still recovering from the accident and a cautious approach to contact is required to take account of the after effects she is still suffering. The primary consideration for the Court is to ensure the child’s best interests and welfare are served.
In my view the social worker has made out a case for contact to be restricted, particularly as the Family Court hearing is now to be delayed and the likelihood of a final determination about the father’s contact is uncertain.
[Emphasis added]
[21] Ms Hutchinson submitted that the Family Court recognised that continuation of the supervised weekly access would be detrimental to the child’s recovery and would cause her undue hardship.
[22] Mr McKenzie’s response to the Chief Executive’s position was to emphasise that r 220 applies only to interlocutory applications. He submitted the ex parte application was not such an application. He referred me to the statutory definition of an interlocutory application in the Rules which provides:
interlocutory application
(a)means an application, proceedings or intended proceedings for an order or a direction relating to a matter of procedure or for some relief ancillary to the orders or declarations sought in the proceedings or intended proceedings; and
(b)includes:
(i)an application for a rehearing; and
(ii)an application to review an order made, or a direction given, on an interlocutory application.
[23] The ex parte application was made in the wake of the vacating of the 7-8 May fixture which was to determine the substantive application for variation of access that had been filed in November 2016 and remained extant. In the affidavit filed in support of the May application by the responsible social worker, she deposed:
I believe that the application needs to be without notice because due to the two day hearing set for 7 and 8 May 2018 not proceeding regarding the current Family Court matters there will be further delay in decisions being made for [the child]. The case has not yet been scheduled or allocated a hearing date. This delay is not in the best interests of [the child] and with the new concerns regarding [the child’s] anxiety further delay will impact on the capacity for [the child] to engage with a psychologist to address her anxiety.
[24] It follows from the context in which the application was made that the Chief Executive was applying “for some relief ancillary” to the substantive proceeding already before the Family Court which sought to vary access. At the time Judge Riddell made his order it was not clear when a new fixture could be held. The Judge’s decision to grant the ex parte order was only made because the Family Court hearing had been delayed and the likelihood of when a “final determination about the father’s contact” could be substantively determined was uncertain. It is tolerably clear that the ex parte order was made on the basis the adjourned application to vary access would be the subject of a substantive hearing, and that the Judge was only making the order on an interim basis.
[25] Mr McKenzie drew my attention to an email sent to JM from the responsible social worker after the making of the ex parte order. The email set out access dates for the remainder of the year. Mr McKenzie submitted the scheduled dates for monthly access was indicative of Judge Riddell’s order being of substantive and/or final effect. I can understand JM’s alarm upon receiving such advice from the social worker. However, at the time the email was sent, on 10 May, a new fixture had not yet been allocated. There is no dispute between the parties that the fixture at the end of this month will involve a thorough re-assessment of the child’s position and an examination of appropriate access arrangements.
[26] While it is not necessary for me to come to any concluded view on the issue, it is apparent that the application for variation made to the Family Court was in anticipation of a defended hearing of the Chief Executive’s extant application. To that extent, it was ancillary to that application and capable of being viewed as being in the nature of an interlocutory application.
[27] In any event, there is, on the face of the record, an existing order of the Family Court which governs the present access arrangements. It would be inappropriate, on a disputed application for interim orders where there are competing arguments as to the validity of the Family Court’s order, to effectively quash that Court’s decision which is the subject of the substantive application for review. This is especially so, when the interim access decision will effectively lapse upon the hearing of the substantive application in 19 days time.
[28] Mr McKenzie submitted that even if the Chief Executive’s welfare concerns for the child were valid, the appropriate and lawful course would have been to apply for a variation by seeking an urgent hearing with abridged timetabling orders. Ms Hutchinson, relying on the social worker’s affidavit filed in the Family Court in support of the ex parte application, submitted that the circumstances were urgent. She argued that, because of the immediate concerns for the care and welfare of the child, which must be the paramount consideration, the Chief Executive was justified in making the application without notice on the basis it was only sought as an interim measure.
[29] Again, it is not necessary for me to comment on the appropriateness of the Chief Executive’s action in the circumstances of this case in proceeding in the way he/she did. It certainly would not be appropriate on an application for interim orders to make any determination. There are arguments available to both sides regarding that issue. The short point is that the respective merits of the parties’ positions have been overtaken by the availability of the two day fixture.
Imminent fixture
[30] Mr McKenzie himself emphasised the considerable body of evidence, including that of professional witnesses, and the history and relative complexity of this
case which will have to be canvassed at the substantive hearing. It follows that the Family Court will be much better placed at the conclusion of the two day hearing to make determinations about appropriate access arrangements. Having regard to the present issues which the Chief Executive maintains bears on the need to vary JM’s access and the need to maintain the child’s current routine, I do not consider it would be in the child’s best interests to alter access for the purpose of the short period before the substantive hearing in the Family Court at the end of this month.
[31] The matter will be fully reviewed at that time, and JM will have full opportunity to dispute the Chief Executive’s application for variation. I am reinforced in that view in the knowledge that he will have one supervised access visit before the hearing. It would be an undesirable state of affairs if I, on the scant information before me, restored weekly access only for the Family Court after a two day hearing, and full consideration of all the evidence (which is not before me), to consider a different course was appropriate. To grant the interim relief sought by JM would, in the circumstances, be a precipitous step.
[32] Mr McKenzie submitted that because of the body of evidence and the complexity of the issues the Family Court would have to decide, a final decision may not be delivered for some weeks or months after the completion of the hearing. If that is the case, JM is free to make application before the Family Court for some interim arrangement pending the Court’s final decision. Any such decision by that Court would be informed by the material adduced before it during the two day hearing. It will be far better placed to assess any appropriate arrangements.
Result
[33]For these reasons, JM’s application for interim orders is dismissed.
Suppression
[34] There will be an order prohibiting publication of the names and identifying particulars of the applicant and the child.
Solicitors:
Andrew McKenzie Barrister, Christchurch Crown Law Office, Wellington
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