Lowe v Auckland Family Court
[2017] NZHC 209
•21 February 2017
NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995
AND S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE US/ABOUT-THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON- PUBLISHING-JUDGMENTS.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-2593 [2017] NZHC 209
IN THE MATTER OF An application under the Judicature
Amendment Act 1972 and section 27 of the New Zealand Bill of Rights Act 1990, and Part 30 of the High Court Rules
BETWEEN
LOWE Applicant
AND
AUCKLAND FAMILY COURT First Respondent
WAY
Second Respondent
Hearing: 14 February 2017 Appearances:
S Abdale for the Applicant
J McLennan and S Dunn for The Second Defendant/Respondent
M Headifen as lawyer for the childJudgment:
21 February 2017
JUDGMENT OF GORDON J
This judgment was delivered by me on 21 February 2017 at 1.00 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: Solicitors: Crown Law, Wellington
Vicki Pomeroy Law, Auckland
Holmden Horrocks, Auckland
Counsel: S Abdale, Auckland
M Headifen, Auckland
LOWE v AUCKLAND FAMILY COURT [2017] NZHC 209 [21 February 2017]
Introduction
[1] The applicant (Ms Lowe) is the mother of an eight year old child, J. The second respondent (Mr Way) is his father. On 21 December 2015, Ms Lowe filed an application in the Family Court seeking leave to vary existing parenting orders under the Care of Children Act 2004 (COCA) and a without notice application for a protection order under the Domestic Violence Act 1995 (DVA). Since that time, the Family Court has issued a number of decisions in respect of those matters. Ms Lowe takes issue with three of those decisions in particular (the disputed decisions), being:
(a) A reserved judgment of Judge Burns dated 9 August 2016; (b) A minute of Judge Burns dated 27 September 2016;
(c) An in chambers minute of Judge Burns dated 28 September 2016.
[2] Ms Lowe believes that these decisions were made in breach of natural justice principles and has issued judicial review proceedings to that effect.1
[3] Ms Lowe now seeks interim relief pursuant to s 8 of the Judicature Amendment Act 1972. Specifically, she seeks an order that the proceedings in the Family Court be stayed pending resolution of the judicial review application.2 The application is opposed by Mr Way and by lawyer for the child, Mr Headifen. The first respondent (the Family Court) abides the decision of this Court.
Background
[4] Ms Lowe and Mr Way have been separated since August 2012. Their separation has been marked by a protracted dispute regarding the care and custody of J. In October 2012, Ms Lowe applied to the Family Court for a parenting order under the COCA alleging that Mr Way had been violent towards her and J. The
Judge delivered his judgment on 24 June 2014. He found that the allegations in
1 The substantive hearing is scheduled to take place in April 2017.
2 In her application for interim relief dated 14 October 2016, Ms Lowe also sought a prohibitory injunction in relation to existing parenting orders made on 24 June 2014 but she abandoned that part of her application prior to the hearing. At the hearing Ms Abdale confirmed that the substantive application would be similarly amended.
respect of J were unfounded. The Judge accepted that Mr Way had been violent towards Ms Lowe on at least two occasions, but found that Ms Lowe herself had also been violent on occasions. The Judge described the violence as falling into the category of situational violence. He therefore made orders for a parallel parenting regime in respect of J on a “5:5:2:2” basis with special provisions for the holidays. The High Court on appeal found that three allegations of violence towards Ms Lowe
were substantiated, but did not disturb the parenting order in respect of J.3 The Court
of Appeal refused an application for leave to appeal.4
[5] In December 2015, a dispute arose regarding custody arrangements over the Christmas/New Year holiday. On 21 December 2015, Ms Lowe filed an application for leave to vary the existing parenting order5 and a without notice application for a protection order under the DVA in respect of J. A number of affidavits were filed in support. Many of the affidavits commented on Mr Way’s behaviour towards Ms Lowe and a number expressed concerns about J’s wellbeing when in his father’s care. On 7 July 2016, Judge Manuel directed that the application for a protection order should proceed on notice.
[6] On 20 July 2016, there was a hearing before Judge Burns for the purpose of determining three interlocutory applications:
(a) For leave to seek a variation of the parenting orders, pursuant to s 139A of the COCA (Ms Lowe);
(b)To strike out the leave application, pursuant to s 140 of the COCA (Mr Way);
(c) To exclude some or all of the affidavits filed in support of both the
COCA and DVA applications, pursuant to r 170 of the Family Courts
Rules 2002 (Mr Way).
3 Lowe v Way [2015] NZHC 93.
4 Lowe v Way [2015] NZCA 153, [2015] NZFLR 547.
5 A party who wishes to commence substantially similar proceedings within two years after the final order was given in previous proceedings may only proceed with the leave of the Family Court: Care of Children Act 2004, s 139A(1) .
[7] In response to memoranda apparently filed by counsel for Ms Lowe, the Judge also considered the matter of directions in relation to the 2015 DVA application.
[8] In a reserved judgment issued on 9 August 2016, Judge Burns made orders granting leave to seek variation of the parenting orders on the basis that it had been more than two years since the parenting orders were made and accordingly it would be futile to decline leave, since Ms Lowe could immediately re-file fresh applications. In any case, however, the Judge agreed that there was a need to review the current parenting arrangements to ensure they were optimal for J. The Judge refused Mr Way’s corresponding application to strike out the leave application, but made orders restricting the factual issues to those arising since 24 June 2014, the date of the original parenting order.
[9] Due to the complexity of the case, the Judge appointed a senior psychologist to report upon J’s situation pursuant to s 133 of the COCA. He requested the report to be commissioned as soon as possible. In respect of the affidavit evidence, Judge Burns identified the subject matter of most of the supporting affidavits.6 He held that all but three of the affidavits should be struck out. However, the Judge granted permission to file fresh affidavits, provided that any further affidavits were limited to
factual issues arising since June 2014; did not contain opinion evidence unless the deponent was qualified as an expert; and did not contain any statements of advocacy or reference to the historical position.
[10] The Judge did not make any further directions in respect of the 2015 DVA application. Instead, he dismissed the application. While noting that the issues raised on behalf of J did need to be examined, the Judge considered that Ms Lowe had not complied with s 9 of the DVA; that in any event she was not an appropriate person to bring an application on behalf of J; and further, there was no basis for making a protection order in respect of Ms Lowe herself. In any case, he noted that J’s school had referred his case to Child, Youth and Family. The Judge considered
that this inquiry was the appropriate vehicle by which to consider the issues affecting
6 Ms Lowe filed a total of 22 affidavits in support of her 2015 DVA and COCA applications, not including her own, 19 of which were addressed in Judge Burns’ decision.
J and in particular, to determine objectively whether there were any issues of violence impacting upon him.
[11] Following release of the 9 August 2016 decision, Ms Lowe filed a complaint with the Judicial Conduct Commissioner in respect of Judge Burns. Ms Lowe also filed an application for his recusal.
[12] On 27 September 2016, Ms Lowe filed a further without notice application for a protection order under the DVA, supported by a memorandum of counsel, an affidavit sworn by counsel and ten further supporting affidavits. The covering email noted that Ms Lowe had filed an application for recusal and requested that another Judge deal with the file. That request was declined. On the same day, Judge Burns issued a decision requiring the application to proceed on notice. He issued a separate minute the following day, setting out his reasons for that decision.
[13] In his minute dated 28 September 2016, Judge Burns criticised counsel for requesting that another Judge deal with the file. He noted that while the Court had received an application for recusal, Mr Way had not had an opportunity to be heard on the application, nor had the lawyer for the child. In his view, there was no reason for him to recuse himself at that stage. In respect of the 2016 DVA application, Judge Burns noted that the Court had already considered the events arising up until
10 August 2016 in respect of the 2015 application and had determined that the earlier application should proceed on notice.7 The issue, therefore, was whether any facts had emerged since that time which would justify the new application proceeding without notice. Judge Burns acknowledged that the supporting affidavits identified some new issues in respect of the interaction between the parents and how J behaved in the presence of his parents. However, in his view the new facts did not meet the
threshold required to proceed on a without notice basis.
Application for judicial review
[14] On 14 October 2016, Ms Lowe filed an application for judicial review of the decision and minutes dated 9 August 2016, 27 September 2016 and 28 September
7 The reference to 10 August 2016 appears to be in error as the reserved judgment dismissing the
2015 DVA application is dated 9 August 2016.
2016 respectively. The statement of claim sets out five causes of action for breach of natural justice as follows:
(a) First cause of action: Ms Lowe alleges that the decision to dismiss her 2015 DVA application was made in breach of natural justice principles, on the basis that she was denied an opportunity to be heard. She further alleges that, inter alia, the Judge had pre- determined the issue; that the decision was irrational and unreasonable; that he ignored the mandatory requirements of the DVA; and that the decision breached legitimate expectations.
(b)Second cause of action: Ms Lowe alleges that the decision to strike out all but three of the supporting affidavits was made in breach of natural justice principles. She further alleges that, inter alia, the Judge acted irrationally, denied her right to fair process and showed bias.
(c) Third cause of action: Ms Lowe alleges that the failure of Judge Burns to recuse himself pending the hearing of her application for recusal resulted in a breach of natural justice.
(d) Fourth cause of action: Ms Lowe alleges that the order requiring the
2016 DVA application to proceed on notice was made in breach of natural justice principles, on the basis that the reasons given for that decision were the same as those given for dismissing the 2015 DVA application. She further alleges that the timing of the minute on
27 September 2016, just hours after the application was first filed, indicates that the Judge did not read the supporting evidence before issuing his direction.
(e) Fifth cause of action: Ms Lowe alleges that the order restricting material in support of the 2016 DVA application to factual issues arising after 10 August 2016 was made in breach of natural justice principles, on the basis that the substance of the allegations raised in the 2015 DVA application was never considered by the Court.
Ms Lowe further alleges that in describing the timing of her application as “tactical”, the Judge indicated bias, predetermination and irrationality, and that this amounted to an arbitrary attack on her character.
[15] Ms Lowe seeks orders in the judicial review application setting aside the disputed decisions and prohibiting Judge Burns from managing cases involving her until the application for recusal has been determined.
[16] Ms Lowe has sworn an affidavit in support of her application for judicial review. In her affidavit, she states that J is experiencing “suicidal ideation and plans” and that he is self-harming. She deposes that she has been contacted by J’s school principal, who has informed her that J actively resists leaving school with his father and that J has disclosed suicidal thoughts to him. She says that she has attempted to seek help for J but has been blocked by Mr Way.
Application for interim relief
[17] On 14 October 2016, the same day as Ms Lowe filed her application for judicial review, she also filed an application seeking interim relief under s 8 of the Judicature Amendment Act 1972. That section relevantly provides:
8 Interim orders
(1) Subject to subsection (2) of this section, at any time before the final determination of an application for review, and on the application of any party, the Court may, if in its opinion it is necessary to do so for the purpose of preserving the position of the applicant, make an interim order for all or any of the following purposes:
(a) Prohibiting any respondent to the application for review 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 for review relates:
(c) Declaring any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by effluxion of time before the final determination of the application for review, to continue and, where necessary, to be deemed to have continued in force.
(2) …
(3) Any order under subsection (1) or subsection (2) of this section may be made subject to such terms and conditions as the Court thinks fit, and may be expressed to continue in force until the application for review is finally determined or until such other date, or the happening of such other event, as the Court may specify.
[18] When considering whether to grant interim relief, a court must first be satisfied that the order sought is reasonably necessary to preserve the position of the applicant.8 If that threshold is satisfied, then the court has a wide discretion to consider all the relevant circumstances of the case, which may include the strengths or weaknesses of the applicant’s case, the competing advantages and/or detriments to the parties, the status quo, any private or public repercussions, and the overall justice of the case.9 In cases concerning the day-to-day care of a child, there is an additional consideration which is that the welfare and best interests of the child in his or her particular circumstances must be the first and paramount consideration.10
A preliminary matter – further affidavits
[19] Mr McLennan had signalled that he would be filing an updating affidavit from Mr Way following the Family Court Registrar’s review on 9 February 2017. An affidavit was duly filed on 10 February 2017 and essentially annexes documents recently filed in the Family Court. I admit that affidavit.
[20] Without notice on the afternoon of 13 February 2017 Ms Abdale filed two further affidavits. They were provided to me shortly before the hearing commenced. One is an affidavit from Ms Lowe which Ms Abdale described as an updating affidavit. The second is a short affidavit from a friend of Ms Lowe confirming one aspect of Ms Lowe’s affidavit.
[21] Mr McLennan objected to the admission of the affidavit of Ms Lowe submitting that it contained highly contentious matters and that almost the entire
contents were denied by Mr Way. He submitted, in fairness, Mr Way should have
8 Carlton and United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) at 430.
9 See also ENZA Ltd v Apple and Pear Export Permits Committee HC Wellington CP266/00, 18
December 2000.
10 Care of Children Act, s 4(1).
the opportunity to respond. Mr McLennan did not object to the admission of exhibits A and B to the affidavit which are documents filed recently in the Family Court. He also accepted that the Court could consider part of Exhibit D, a letter of
27 January 2017 from a GP addressing issues in relation to J.
[22] I accept Mr McLennan’s submission that Mr Way should have had the opportunity to respond to contentious matters. I admit only Exhibits A and B and the GP’s letter of 27 January 2017 forming part of Exhibit D. I do not admit the body of the affidavit or the remainder of the exhibits. I note that in any event the excluded content is not of assistance in determining the application for interim relief.
[23] As a consequence the affidavit of the applicant’s friend is not admitted.
Discussion
[24] In my view, there are two substantial obstacles which stand in the way of Ms Lowe obtaining interim relief by way of stay. The first is that she does not appear to have any position to preserve. The second, and arguably more significant reason, is that in my view a stay of the Family Court proceedings would be inconsistent with J’s welfare and best interests in his particular circumstances.
First stage: is interim relief reasonably necessary to preserve Ms Lowe’s position?
[25] In order to satisfy the threshold test, an applicant must show first, that the applicant has a position to preserve and second, that the relief sought is necessary in order to preserve that position.
[26] Ms Abdale, who appeared on behalf of Ms Lowe, submitted that Ms Lowe held a position in the Family Court proceedings which would be unfairly prejudiced if interim relief was declined. Ms Abdale did not characterise this position in terms of Ms Lowe’s substantive rights and responsibilities in respect of J. Rather, she submitted, Ms Lowe had filed applications in the Family Court which had progressed to a certain point. She wishes to preserve that “position” in respect of the proceedings until her concerns regarding alleged breaches of natural justice have been determined in this Court on review. In describing the position to be preserved,
Ms Abdale placed significant emphasis upon the continued role of Judge Burns in case-managing the proceedings. Ms Abdale submitted that further, both Ms Lowe and J are suffering ongoing trauma as a result of the Family Court proceedings, which would be exacerbated by the stress of attending to simultaneous litigation in the High Court and the Family Court. I deal with each of these points in turn below.
[27] It is undoubtedly true that in the absence of interim relief, the Family Court proceedings will continue. As a result Ms Lowe’s “position” in the proceedings, in the sense described above, may change. However, I do not consider that is the sort of position that can be protected by interim relief. This is not a case where the lapse
of time will “render the practical effect of final relief of little or no value”.11 The
corollary of any successful judicial review proceedings will almost certainly be that any flawed decisions of the Family Court will be quashed and reheard. Ms Lowe will have another opportunity to put forward submissions. I am unable to see how a refusal of interim relief would disadvantage Ms Lowe in this respect.
[28] Similar reasoning applies in respect of the continued role of Judge Burns. If Ms Lowe is successful in her third cause of action, then it is highly likely that the decisions in question will be quashed and sent back to the Family Court to be reheard by a different Judge. The strength of the case for review on this ground is also relevant. Based upon the evidence that is before me (but without wishing to be seen to make any final determination on this issue), I think it is unlikely that Ms Lowe will succeed in her third cause of action. There is nothing apparent to me in the various decisions or minutes issued by Judge Burns which suggests grounds
for recusal.12 Accordingly, I do not consider that Ms Lowe has a position to preserve
in this respect.
[29] Further, and contrary to Ms Abdale’s submissions on this point, the mere fact
that an application for recusal has been made does not mean that a Judge should
11 Woodhouse v Auckland City Council (1984) 1 PRNZ 6 (HC) at 4.
12 See discussion in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35; Muir v Commissioner of Inland Revenue CA46/06, 7 August
2007; R v Sullivan [2014] NZHC 519.
abstain from hearing a case. This is consistent with the following statement of the
Supreme Court in Siemer v Heron:13
[14] It is also relevant in cases such as the present that there are strong institutional safeguards within the system. Following appointment, judges take an oath committing them to independence and impartiality in their judicial service. They promise to do right to all manner of people without fear or favour, affection or ill-will. Judges are also accustomed, on a daily basis, to putting aside their views of litigants appearing before them that are not relevant to the issues. This applies whether the litigants are self- represented or have counsel. Their commitment to proper exercise of the judicial function and their experience in discharging that commitment equip judges to administer justice impartially, without being distracted by extraneous events such as the reactions of the parties to what they decide or do. This is so even where there has previously been an expression of strong concern by the litigant over what the judge has done such as by lodging a complaint or seeking the recusal of the judge.
(emphasis added)
[30] If a mere application for recusal were sufficient to restrict a Judge from further participation in the case, then the parties to court proceedings could effectively select a Judge of their choosing by filing strategic recusal applications.14
Such an outcome would be inconsistent with the fundamental principles of the justice system and would significantly increase the time and cost associated with court proceedings. Nor does the fact that a complaint has been made to the Judicial Conduct Commissioner justify recusal. I do not think Ms Lowe will suffer any disadvantage in this respect if interim relief is refused. Having said that, I note it is desirable that applications for recusal be dealt with promptly by the Judge concerned.
[31] Finally, I acknowledge that concurrent proceedings in the Family Court and High Court are likely to impose further stress upon Ms Lowe and, by extension, upon J. However, that is not unusual and is not the same thing as having a position which it is necessary to preserve by way of interim relief.
[32] It follows that I do not consider interim relief is reasonably necessary in order
to preserve Ms Lowe’s position. Accordingly, the application for interim relief must
fail.
13 Siemer v Heron [2011] NZSC 116, [2012] 1 NZLR 293.
14 See Siemer v Heron, above n 13, at [13].
Second stage: discretionary factors
[33] Even if I am wrong in respect of the threshold for interim relief, however, I do not think the Court would be justified in awarding interim relief in the present case. My primary reason for coming to this view is that I consider, contrary to the submission made by Ms Abdale, that a stay of the Family Court proceedings would be highly adverse to J’s welfare and best interests in his particular circumstances.
[34] As noted above, Ms Lowe has previously expressed fears for J’s physical and psychological safety. On 10 November 2016, Ms Lowe filed a further affidavit in support of an application for urgency, in which she deposed:
5.I confirm that interim relief is urgent and necessary given the escalating distress and desperation suffered by my son and myself, the psychological harm being caused while this situation is ongoing, and the risk of serious physical harm, particularly to my son, and that my position in the Family Court cannot be preserved without a stay being granted.
6.While there is substantial third party evidence of my son’s suicidal ideation and plans, and self-harm, as his protective mother I am most aware of his vulnerability and desperation. I am also deeply distressed by both my fears for my son and by the ability of the Second Respondent to use the Family Court proceedings by denying/hiding his son’s acute risk of harm.
[35] In my view, the application for interim relief by way of stay is completely inconsistent with Ms Lowe’s account of the danger to J. By Ms Lowe’s account, the present parenting orders in respect of J are creating a threat to his life - hence the need for a variation and the application under the DVA.15 If that is the case, then it is absolutely crucial that the Family Court has the opportunity to gather together the necessary information and make new parenting orders that will better protect J. The “escalating distress and desperation suffered by [J]” are the precise reasons why the
Family Court proceedings must continue on foot while Ms Lowe’s application for judicial review is heard. I note that this process would be expedited by Ms Lowe’s full cooperation with the senior psychologist in charge of compiling the s 133 report
for the purpose of the COCA proceeding.
15 This account of events is disputed by Mr Way.
[36] I also take into account the statutory direction in s 4(1) of the COCA that any person considering the welfare and best interests of a child, in his or her particular circumstances, must take into account the principle that decisions affecting the child should be made and implemented within a timeframe that is appropriate to the child’s sense of time.
[37] In that regard, in his letter of 27 January 2017 the GP said:
J is sometimes overwhelmed and distressed, he feels he would sometimes be better off dead.
One of the “significant contributing factors” listed by the GP is “[t]he protracted
Court Process – Chronicity of ongoing stressors without any real change for him.”
[38] Mr McLennan submitted that had Ms Lowe co-operated with the writer of the s 133 report then that report would have been completed by the due date of
28 January 2017 so that, at the Judicial Conference in the Family Court on
15 February 2017, the Court could have set a date for the substantive hearing of Ms Lowe’s application for a variation of the existing parenting orders. He further submitted that if a stay were entered, the Family Court proceedings would be significantly delayed. Mr McLennan estimated that, after building in time for the matter to then go back before the Family Court, time for Ms Lowe and J to be interviewed by the s 133 report writer and time for the production of the report, it could be as late as December this year before the application were back before the Family Court. Even assuming the proceedings moved more quickly in the Family Court than Mr McLennan’s estimate, further delays resulting from a stay would not be in J’s welfare and best interests.
[39] There is another factor which, in my view, militates against the grant of interim relief in this case. That is the strength of Ms Lowe’s case. In my view (and without wishing to be seen to make a final determination), the third through fifth causes of action have very little prospect of success. I agree that there may be some merit in the first and second causes of action. I give my reasons very briefly, in relation to each of the causes of action.
First Cause: Breach of natural justice – Dismissal of the 2015 DVA application
[40] The 9 August 2016 judgment records in [32] that there are three interlocutory applications for determination and a further issue is “[w]hat direction should be made with respect to the application for a protection order?”
[41] It is apparent from the transcript that, in the course of the hearing, the Judge expressed his view that the application did not comply with s 9 of the DVA and that Ms Lowe was not an appropriate person to bring an application on J’s behalf. The Judge then said that he was:
[J]ust pointing out to [counsel] those are the hurdles that will need to be addressed. But let’s put that all to one – the domestic violence proceedings to one side. …
[42] There was no further discussion of the 2015 DVA application. Therefore, as
noted above, there does appear to be merit in Ms Lowe’s claim that in dismissing the
2015 DVA application without hearing from Ms Lowe, there was a breach of natural justice.
[43] However, even if Ms Lowe is successful on this cause of action, the only relief available would be to quash the decision of Judge Burns dismissing the 2015
DVA application and remit the matter to the Family Court for rehearing. Given that Ms Lowe has subsequently filed her 2016 DVA application, this exercise would appear to be largely fruitless.
Second cause: Breach of natural justice – striking out evidence in the COCA and
DVA proceedings
[44] The Judge heard full argument on Mr Way’s application to strike out affidavit evidence and gave a reasoned decision. I do not think Ms Lowe has any real prospect of success in respect of the affidavits which were discussed in the judgment.
[45] I acknowledge that the Judge omitted three of the supporting affidavits from his discussion. However, he gave Ms Lowe the opportunity to refile affidavits within the bounds set out in the judgment. I understand further affidavits have now been filed. While there may have been a reviewable error in failing to consider three
of the affidavits, it seems unlikely that this Court would grant relief as there would be little point in doing so, given that Ms Lowe has subsequently filed a new application and new supporting affidavits.
Third cause: Breach of natural justice – refusal to recuse
[46] I have already addressed this cause of action at [28]–[30] above. In my view, this cause of action has little prospect of success.
[47] In a minute dated 18 November 2016, Judge Burns directed that the application for recusal was not to be set down until after the psychologist’s s 133 report had been received by the Court. The connection between those two events is not clear to me. As noted above, it would be desirable for the recusal application to be heard expeditiously in order to resolve this issue.
Fourth and fifth causes: Breach of natural justice – directing DVA proceedings on notice and reasons for direction
[48] I deal with the fourth and fifth causes of action together. In his minute of 27
September 2016, Judge Burns clearly states that he has considered over 400 pages of documents and that he has dictated a minute giving his reasons for placing the application on notice. I do not consider that there are any grounds for this Court to disbelieve the Judge on this matter.
[49] The Judge’s reasons were delivered accordingly in a minute dated 28
September 2016. Essentially, his reason for placing the application on notice was that the evidence did not disclose any new facts emerging since his previous decision which would indicate a risk of harm or undue hardship to Ms Lowe or J if the 2016
DVA application were to proceed on notice. In my view, he was entitled to limit his consideration of the evidence to events occurring after 10 August 2016 for the purpose of deciding whether the application should proceed on a without notice basis. Contrary to the submission made by Ms Abdale, he did not make any direction regarding the evidence to be heard on the substantive DVA application. I do not consider that Ms Lowe has any real prospect of success on this ground of review.
Family Court Conference on 15 February 2017
[50] At the hearing Ms Abdale made an oral application for an order staying the
Family Court Judicial Conference set down before Judge Burns on 15 February
2017, the day following the hearing in the High Court. The application was opposed by Mr Way. I refused the application. Ms Abdale had also applied to the Family Court for an adjournment. In my view it was not appropriate for this Court to make an order staying the conference prior to its decision regarding interim relief. The proper course was for Ms Abdale to pursue her adjournment application in the Family Court, which I understood would be considered at the conference on 15
February 2017.
Conclusion
[51] The application for interim relief is dismissed.
Costs
[52] Costs are to follow the event in accordance with r 14.8 of the High Court
Rules 2016.
[53] At the hearing, Mr Headifen noted s 135A of the COCA, which requires the Court to make an order that the parties contribute to the fees and expenses of counsel for the child, unless such an order would cause serious hardship to a party or to a dependent child of a party.
[54] Counsel should attempt to reach agreement and if possible should file a joint memorandum on costs. In the event that counsel are unable to agree, counsel for Mr Way should file his memorandum within 10 working days from receipt of this judgment and counsel for Ms Lowe within a further 5 working days thereafter.
[55] If counsel for the child wishes to submit a memorandum on costs, he should do so within 10 working days from receipt of this judgment.
[56] Memoranda should not exceed 6 pages.
Gordon J
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