Larsen v Family Court

[2023] NZHC 395

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-10

[2023] NZHC 395

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER

of the New Zealand Bill of Rights Act 1990 and the Care of Children Act 2004

BETWEEN

LARSEN

Applicant

AND

FAMILY COURT

First Respondent

CONEY

Second Respondent

Hearing:	1 March 2023
Appearances:	Ms Larsen self-represented Applicant Appearance excused for the First Respondent M L Greenhough for the Second Respondent J L Wademan for the Child
Judgment:	3 March 2023

JUDGMENT OF COOKE J

(Dismissing claim for judicial review)

[1]                   Ms Larsen is the mother of Melissa, a five year old child. Mr Coney is the child’s father.1 Ms Larsen brings these judicial review proceedings challenging a decision of the Family Court dated 12 December 2022 under s 46R of the Care of

1      These are fictitious names.

LARSEN v FAMILY COURT [2023] NZHC 395 [3 March 2023]

Children Act 2004 (the Act). The Family Court directed that Melissa be vaccinated in accordance with the catch-up vaccination schedule for children aged 12 months to five years under s 46R.2 The Court also made a final parenting order in the form largely agreed between the parties although it also made other decisions on disputed matters.

Background

[2]                   Proceedings in the Family Court were first filed by Mr Coney in January 2022. Those proceedings became delayed, and somewhat protracted. Ms Wademan, who is counsel for the child, took me through a chronology of the proceedings in the Family Court including that service could not be affected on the applicant, and that an order for substituted service was required. Ms Larsen told me she had no recollection of being contacted by the Family Court in an attempt to effect service as Ms Wademan had explained, however. In any event it is apparent that the proceedings were not able to be conducted in accordance with the principle in s 4(2)(a)(i) of the Act — that decisions affecting children should be made and implemented within a timeframe that is appropriate to the child’s sense of time.

[3]                   A directions conference was held on 26 August 2022. Judge Walsh set down a half day fixture on 27 October 2022.  He also recorded in his minute the view of  Dr Emma Fitzsimons, a paediatric consultant, that there were no contraindications to Melissa receiving her immunisations, but that Ms Larsen wanted to consult an immunologist. Judge Walsh noted that:

In the end [Melissa’s] best welfare and interests mean that directions need to be made within her timeframe, particularly as there is an issue over which school she is to attend.

[4]                   Shortly before the scheduled fixture Ms Larsen secured counsel who made an application for the hearing to be adjourned on the basis that she was not available on 27 October 2022. The day before that hearing an application was also made that evidence from Melissa’s general practitioner, Dr Kenny be filed and served late. No evidence from an immunologist was filed by Ms Larsen.

2      Coney v Larsen [2022] NZFC 12343.

[5]                   On 27 October 2022, the day of the scheduled hearing, Judge O’Dwyer then granted the adjournment of the hearing, setting a new hearing date on 28 November 2022. She also set a new timetable.

[6]                   The hearing then proceeded before Judge O’Dwyer on 28 November 2022. That hearing spilled over into the following day due to the industrial action taking place within the courts at that time. Evidence was given by Ms Larsen, Mr Coney, Melissa’s GP Dr Kenny, and the consultant paediatrician Dr Fitzsimons. Reports of other medical specialists were referred to. The evidence was completed, and closing submissions provided on 29 November 2022. On 12 December 2022, Judge O’Dwyer released a detailed reserved decision making orders that Melissa would be vaccinated.

[7]                   Ms Larsen did not exercise any of her rights of appeal to the High Court under s 143 of the Act. Importantly under s 143(2) any decision under s 46R of the Act of the kind that the Court made can only be appealed with the leave of the High Court. Rather by statement of claim dated 16 January 2023 Ms Larsen applied to challenge the decision of the Family Court by way of judicial review. A without notice application for interim relief was also filed at the same time in which Ms Larsen sought an order prohibiting the second respondent from vaccinating Melissa as the Family Court had ordered.

[8]                   This proceeding was considered that day by the Duty Judge who by minute dated 16 January 2023 explained that the application needed to be served. Ellis J also said:

For [Ms Larsen’s] information I record that under s 143 of the Care of Children Act [Ms Larsen] could only appeal Judge O’Dwyer’s s 46R decision with leave of this Court. But contrary to what appears to be [Ms Larsen’s] understanding, she is not out of time for filing such an application because the relevant statutory definition of “working day” excludes the period beginning on 25 December and ending on 15 January.

[9]                   The proceeding then came back before me as Duty Judge in the following week. I convened a telephone conference. Ms Greenhough for Mr Coney indicated that she wanted to discuss with Mr Coney how to respond to the proceedings. I also recorded in my minute dated 18 January 2023:

One of the matters that Ms Greenhough raised was that the proceeding was in the nature of a judicial review challenge rather than an application for leave to appeal under the Care of Children Act. I discussed this with [Ms Larsen], and she explained that her decision to proceed by way of judicial review was deliberate as her complaint was related to the fairness of the hearing before the Family Court. She considered that her complaint was best advanced by way of a judicial review proceeding. I indicated to her that whilst this may be a technically available avenue, in the end the Court may need to focus on the regime under the Care of Children Act, and that it may be difficult for her to persuade the Court to grant relief unless it could be provided under the appeal mechanisms under the Act.

[10]               I then held a further telephone conference on 27 January 2023 after allowing Ms Larsen and Mr Coney to reflect on their positions. Ms Larsen confirmed she wished to proceed with the judicial review proceeding notwithstanding what I had explained, and Ms Greenhough confirmed that Mr Coney accordingly wished to apply to strike it out as an abuse of process.

[11]               Given the proceeding involved a care of children matter concerning the immunisation of a child before she started school in February I gave directions for the purposes of an urgent hearing before me on 8 February 2023. I recorded Mr Coney’s undertaking that Melissa would not be immunised in the meantime. The directions I gave included a direction that Mr Coney’s proposed strike out application would be considered at the same time as the substantive judicial review application.

[12]               Following the release of that minute on 27 January 2023, Ms Larsen then applied to adjourn the hearing I had just set down on the basis there was insufficient time for her to adequately prepare for it. The application was opposed by Mr Coney. I nevertheless convened a further telephone conference on 1 February 2023, and then granted a short adjournment, but rescheduled the hearing for 1 March. In the minute I also granted interim relief under s 15 of the Judicial Review Procedure Act 2016 that no further steps would be taken to implement the Family Court order until further order of the Court.

[13]This is the hearing that has now occurred before me.

Are these proceedings an abuse of process?

[14]               As indicated Mr Coney has applied to strike out these proceedings on the grounds that they are an abuse of process. Judicial review proceedings can be struck out, including because they are an abuse of process.3 The right of a party to apply to strike out is subject to the Court’s supervision given the need for judicial review proceedings to be conducted in a simple, untechnical and prompt manner.4 Here I determined that it was most appropriate for the substantive judicial review challenge to be set down for hearing, with the arguments in support of the strike out application to be advanced at that stage. Even apart from the strike out application the matters raised could provide reasons why the application for review should be dismissed.

[15]               The fact that this judicial review proceeding seeks to challenge a decision of the Family Court to which appeal rights are associated gives rise to an issue. As observed in the judgments of the Supreme Court in Tannadyce Investments Ltd v Commissioner of Inland Revenue:5

… New Zealand courts are generally reluctant to entertain judicial review where there is a right of appeal against a statutory decision both on questions of law and where the remedy of appeal provides a more appropriate process. The court may, for instance, refuse to grant relief in the exercise of its discretion where the merits of a decision can be better recognised under a statutory appellate process, which adequately protects the appellant’s interests. Much depends on the context and whether the statutory process provides the more convenient and effective method for seeking redress in the particular case.

[16]The Court of Appeal recently observed in relation to Family Court decisions in

Newton v Family Court at Auckland:6

Judicial review is in principle available in respect of an interlocutory decision made by a Family Court judge under the COCA, where the judge has failed to exercise a statutory power in accordance with that Act. But such a decision will be set aside in judicial review proceedings only where such relief is consistent with the scheme of the legislation, including the carefully structured

3      Te Whakakitenga O Waikato Inc v Martin [2016] NZCA 548, [2017] NZAR 173.

4      Hauraki Coromandel Climate Action Inc v Thames-Coromandel District Council [2020] NZHC 3228 at [21]; Ngāti Tama Ki Te Waipounama Trust v Tasman District Council [2018] NZHC 2166, [2019] NZAR 1732 at [16]–[19].

5      Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, [2012] 2 NZLR 153 at [15] (footnotes omitted) per Elias CJ and McGrath J.

6      Newton v Family Court at Auckland [2022] NZCA 207, [2022] NZFLR 102 at [6].

appeal rights set out in s 143 of the COCA. Judicial review is intended to ensure fidelity to the statutory scheme, not to undermine it.

[17]               The Court found that judicial review could not be exercised in relation to decisions where there was no right of appeal unless there was a very clear case of fundamental error.7 For similar reasons in Fox v Fox Isac J recently struck out a judicial review proceeding challenging an interim parenting order of the Family Court on the basis that to allow such a challenge was inconsistent with the regime Parliament had established.8 He held:9

The restriction on interlocutory appeals emphasises that a child’s welfare and best interests will be promoted by the expeditious and final determination of applications concerning care arrangements between parents. Extensive pre- trial appeals are likely to delay the final resolution of those arrangements, and create uncertainty for the child likely to be contrary to their welfare. It may also adversely affect their development by delaying resolution of appropriate arrangements for their care.

[18]               The same considerations apply in relation to orders under s 46R. This section arises when there are disputes between parents or guardians about the care of children. Section 143(2) makes it plain that appeals from the Family Court under this section can only occur with the leave of the High Court. There are good reasons for this. If decisions on all such disputes could be subject to appeal, day to day care of children issues could be bound up by never ending litigation leading to adverse implications of the kind described by Isac J.

[19]               Here Ms Larsen has elected not to seek leave to appeal the decision. The pursuit of the judicial review proceedings has nevertheless caused further delay contrary to the principle in s 4(2)(a)(i) of the Act. Melissa has now started school without being immunised. Ms Larsen’s challenge is deliberately limited to the matters of procedure, with a rehearing in the Family Court sought by way of relief. Such an order would have the effect of further delaying immunisation, which is effectively what Ms Larsen has been seeking all along. To allow the judicial review proceeding to lead to that outcome, even if this is not Ms Larsen’s conscious intention, could involve an abuse of process.

7 At [8].

8      Fox v Fox [2022] NZHC 2834.

9 At [11].

[20]               In those circumstances in my view the Court should not intervene by way of judicial review unless there is some question of fundamental error that warrants the intervention of the Court notwithstanding the regime created by the Act and these implications. In the words of the Court of Appeal any judicial review proceeding should be to ensure fidelity to the scheme of the Act rather than undermining it.10

[21]               Notwithstanding Ms Larsen’s arguments the matters that she advanced do not raise an arguable case of a fundamental error of this kind. Moreover, for the reasons addressed below, a more detailed assessment of them reveals that they are ultimately without substance. Ms Larsen challenges interlocutory, or procedural decisions made by the Family Court surrounding the hearing on 28 and 29 November 2022. She says that the Court should have allowed an adjournment of the proceedings on the second day because her counsel had indicated that she had been unwell, that it should have granted leave to file written closing submissions, and that it also should have granted leave to receive further evidence including certain documents relating to the safety of vaccination. She was very careful to explain that she was not seeking to challenge the correctness of the Family Court decision, merely the fairness of the proceedings before the Court. None of these matters raise an issue of alleged fundamental error of sufficient importance to displace the presumption that the limits on the rights of appeal to this Court should be respected.

[22]               For completeness I note that there is authority for the proposition that breaches of natural justice by a court or tribunal cannot be addressed by the High Court on appeal. Professor Joseph has identified the difficulty with that view, and other decisions have not adopted it.11 A breach of natural justice would constitute an error of law by the court or tribunal, with the Court able to set aside the decision and direct a rehearing on appeal. It would likely be desirable for such issues to be addressed in the appeal process — the significance of any such error can be assessed, and there is also a prospect of the breach of natural justice being cured by the appeal process. To suggest such matters must be addressed separately by way of judicial review risks an unnecessary proliferation of proceedings. In my view decisions to that effect should

10 Newton v Family Court at Auckland, above n 6, at [6].

11 Philip Joseph Constitution and Administrative Law in New Zealand (5th ed, Thompson Reuters, Wellington 2021) at [23.4.1]; Kawarau Jet Services v Queenstown Lakes District Council [2015] NZHC 2343 at [41]–[45].

be treated with caution, and analysed in accordance with the context in which they have arisen. The present case is a clear example of a situation where any complaints about procedural fairness are appropriately addressed in accordance with the appeal mechanisms prescribed by the Act.

[23]               For these reasons I consider that the proceedings are an abuse of process, and in any event ought to be dismissed in the Court’s discretion.

Alleged breaches of natural justice

[24]               In any event I do not accept Ms Larsen’s arguments that there was a breach of natural justice, or unfairness in the conduct of the proceedings in the Family Court. So I conclude that the proceedings should also be dismissed on their merits.

[25]               Ms Larsen’s first complaint is that her counsel at the hearing was unwell with a migraine, and that the Court had erred in failing to grant an adjournment application that her counsel made on the second day. She says that the presentation of her case before the Court was compromised as a result. She has described the position in her affidavits, and a letter from her counsel dated 9 February 2023 states:12

I represented [Ms Larsen] in the above-named proceedings at a hearing on 28 November 2022 at Wellington Family Court. The day before the hearing I was ill with a migraine-like headache and was not able to adequately prepare cross-examination questions or submissions for the hearing. On the day of the hearing I still felt unwell, but to a lesser degree, and as I was aware the hearing had already been delayed I decided to proceed. However, I was compromised when presenting [Ms Larsen’s] case.

[26]               Ms Larsen accepted that her counsel had not sought an adjournment at the hearing on 28 November, but said that she did so the following day after the hearing spilled over. Ms Greenhough and Ms Wademan said, however, that this was not an application for an adjournment. Rather when Ms Larsen’s counsel arrived on that morning she said told the Court she had a doctor’s appointment she needed to go to. The Judge responded by saying that she would need to have the appointment rescheduled. Ms Wademan suggested that other judges may have reacted somewhat more robustly to what counsel had advised. The appointment had not been raised the

12     For reasons not explained a letter in almost identical terms, but dated 14 December 2022, was filed with one of Ms Larsen’s earlier affidavits.

previous day when the idea of resuming the following morning was discussed, and then decided upon by the Court. Neither is this matter referred to in counsel’s letters, and I did not understand Ms Larsen to materially disagree with the description of how matters had unfolded before the Judge provided by Ms Wademan.

[27]               I do not accept that there is any breach of natural justice, or unfairness arising from these events. No adjournment application was made, and Ms Larsen’s counsel was right not to have sought one. There is an obligation to attend to care of children matters promptly under the Act. The proceeding had already been delayed, and previously adjourned because of counsel’s unavailability. If counsel is so unwell that they cannot properly continue it may be another thing, but there is nothing to suggest that that was the case. Written submissions had been filed and served in advance of the hearing, and the transcript records that counsel engaged in cross-examination pursuing the points that Ms Larsen wanted to have advanced. Moreover it cannot be said the Court breached natural justice for failing to grant an adjournment application that was never made. The request that counsel be allowed to attend a doctor’s appointment when the hearing spilled over to the following morning may have been the first indication that counsel might have been feeling unwell. But that could not have overridden the need to get through this hearing, particularly given the desirability of a decision being made before Melissa began school.

[28]               Ms Larsen’s second related complaint was that the Court declined an application by Ms Larsen’s counsel to provide supplementary closing submissions in writing. That application was made orally on the second day. A further written interlocutory application was then filed applying to file further written submissions which was declined in a minute dated 1 December 2022, with Judge O’Dwyer recording:

Given its history of delay by [Ms Larsen] in these proceedings further delay is not in the child’s interests, noting the applications were filed in January 2022.

[29]               I again do not accept this involves any breach of natural justice, or unfairness. There was no right to file subsequent written submissions. A hearing is scheduled precisely for the purpose of hearing the parties on the application in question. Written submissions had been filed in advance. Oral submissions were then provided to

elaborate on the written submissions given the evidence that has been heard. Receiving subsequent written submissions not only delays the outcome of a proceeding that is supposed to be determined promptly, but it is also less than ideal because the submissions are not provided at a hearing when the parties can respond on what each other says, and engage with the Court. I agree with the decision that Judge O’Dwyer made.

[30]               Ms Larsen argued that the fact that no subsequent written submissions were allowed meant that certain matters were not able to be addressed by her. For example she was not able to address the implications of the Ministry of Health’s Immunisation Handbook which had been adduced in evidence, or matters such as what she described as a change in Dr Kenny’s evidence. I do not accept that either matter was of sufficient importance to warrant the later filing of further written submissions. Neither do I accept that Dr Kenny changed her evidence. All that she did when giving evidence was explain that her support for deferring immunisation was due to her view that it was better to undertake that immunisation in a  way  that would  be  agreeable  to  Ms Larsen. She explained this under questioning from the Court in the following way:

Q.I know this is a very difficult thing but if you were to put your focus  on [Melissa] as opposed to her mum and I know those two things are very hard to separate especially as a GP, but if you put the focus on [Melissa] what would your recommendation be?

A.I am afraid I would recommend vaccinations and her mum knows that. I have made it very clear from the beginning.

[31]               It is also important to understand that Dr Kenny was called by Ms Larsen. I see no basis to criticise the Family Court Judge for not allowing subsequent written submissions for any of these reasons.

[32]               Ms Larsen’s remaining complaints relate to decisions by the Judge not to allow supplementary material to be adduced in evidence. First the Judge declined leave for Ms Larsen to file additional affidavit evidence responding to Mr Coney’s evidence. I see no basis to validly criticise the Judge for this decision. Having considered the proposed affidavit evidence it seems to me to be argumentative, and of limited assistance (if any). It is not the kind of affidavit that should be adduced outside the directions for filing evidence for the hearing. When explaining why the affidavit

would have been relevant, for example, Ms Larsen referred to Mr Coney’s evidence that Ms Larsen has “always been anti-vaccine”. In her proposed evidence in response Ms Larsen wanted to put before the Court statements that she was not “anti-vaccine”, that the “theory behind vaccination” was sensible, but that there were known risks of vaccination for some individuals. This kind of further exchange was of no benefit to the Family Court, and neither was there any finding by the Court in relation to any categorisation of Ms Larsen’s general views about vaccination. At some point these kind of arguments exchanged in affidavits need to be brought to a close, and when an application is made to file yet more of this character an opportune time presents itself. I agree with the decision of the Judge.

[33]               Ms Larsen’s final criticism relates to a decision of the Judge not to allow certain documents to be introduced into evidence, namely:

(a)Ms Larsen’s medical records, which she had only recently been able to obtain, which related to her history of her own seizures in response to vaccination;

(b)a disclaimer on the first page of the Ministry of Health’s Immunisation Handbook; and

(c)Vaccine Inserts, being publications from drug manufacturers describing the risks and qualifications associated with particular drugs, in this case the vaccines that would be used in the immunisation.

[34]               I see no substance to this criticism either. First, it would not have been appropriate for the Court to receive such documentation in evidence simply by it being handed up. It could only have become materially helpful to the Court if it had been relevant to evidence being given by the witnesses, particularly the medical evidence. The significance or otherwise of such documentation could only be established by a witness. For example such document could be put to a witness, and if its relevance had been established it could then be introduced as an exhibit. Ms Wademan informed me that that was what Judge O’Dwyer ruled, and I agree with that ruling. Ms Larsen appeared to be under the impression that only exhibits could be put to witnesses in

cross-examination. That is not correct. A document can be put to a witness, and if it is established that the document contains relevant evidence it may then be adduced as an exhibit.

[35]               In any event the documentation referred to by Ms Larsen seems to me to have limited relevance. In particular:

(a)The documentation describing Ms Larsen’s own medical history may have provided more information but the key point that Ms Larsen had a history of seizures associated with the vaccination was not in dispute. Both Dr Kenny and Dr Fitzsimons addressed whether that history meant that the child should not be immunised, and explained the difference between something that was contraindicated, and circumstances where immunisation could proceed but with caution. Further detail in the form of the underlying medical records would not assist in relation to that core issue, which was explored in evidence in an appropriate way.

(b)The information from the Vaccine Inserts could have no significance by themselves in the absence of expert evidence that explained the significance of the information. Neither Dr Kenny or Dr Fitzsimons professed to have the expertise to address the drug manufacturers detailed Vaccine Inserts. But the statements in the Vaccine Inserts appear consistent with their evidence. Ms Larsen drew my attention to the statement in the Priorix document saying that that vaccine “should be given with caution to persons with a history or family history of … convulsions”. That appears  consistent  with  the  evidence  of  both Dr Kenny and Dr Fitzsimons that the vaccines were not contraindicated, but that the family history meant that immunisation should proceed with caution. In any event this documentation was not put to either witness, so there was no unfairness by the Judge.

(c)The disclaimer in the front of the Ministry of Health Immunisation Handbook which had been partially introduced during the evidence

from the doctors seems no more than a statement to the effect that health professionals should exercise their professional judgement as to the appropriateness of administering any vaccine, and that no liability could arise for the Ministry’s advice in the Handbook. It is the kind of clause, no doubt drafted by lawyers, that could be found in many publications. It is not suggested that either Dr Kenny or Dr Fitzsimons did not exercise their clinical judgement. Neither was this document put to them in a manner that would establish this disclaimer had any relevance. On the face of it it does not.

[36]               For these reasons there has been no error in the Judge failing to allow these documents to come into evidence other than through a witness, and I see no real substance to the suggestion that the documents contain important information that needed to be addressed.  What was important was the evidence that Dr Kenny and  Dr Fitzsimons gave to the Court, which was tested in the appropriate way.

[37]               For these reasons I see no breach of natural justice, or unfairness, arising from the hearing before the Family Court. Even apart from my finding that the judicial review proceeding should be dismissed for being inconsistent with the regime for challenging Family Court decisions by way of appeal I conclude that the claims should be dismissed on their merits.

Orders

[38]Given the above conclusions the judicial review proceedings are dismissed.

[39]               The interim orders of the Court set out in my minute of 1 February 2023 are also discharged. Given that the interim orders, and the passage of time since the orders made by the Family Court, I alter the orders made to address the consequences of this proceeding. The order in paragraph [128](a) of the Family Court decision is altered by removing the words “so that she receives as much protection as possible before she starts school on 1 February 2023”. That requirement has effectively been rendered ineffective by this proceeding.

[40]               If there is any issue in relation to costs a memorandum seeking costs (no more than three pages plus a schedule) may be filed and served within 10 working days, responded to by a memorandum (no more than three pages plus a schedule) filed and served within 10 working days thereafter.

Cooke J

Solicitors:

Crown Law, Wellington for the First Respondent

Succeed Legal Ltd, Wellington for the Second Respondent