Malone v Auckland Family Court
[2014] NZHC 1290
•9 June 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-1088 [2014] NZHC 1290
BETWEEN RACHEL MALONE
Plaintiff
AND
AUCKLAND FAMILY COURT First Defendant
JOHN MALONE Second Defendant
Hearing: 5 June 2014 Appearances:
S Abdale for the Plaintiff
No appearance by First Defendant
C Webster and M Matthew for the Second DefendantJudgment:
9 June 2014
RESERVED JUDGMENT OF ELLIS J
This judgment was delivered by me on Monday 9 June 2014 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Counsel/Solicitors:
S L Abdale, Barrister, Auckland
C Webster, Rennie Cox, AucklandM Matthew, Rennie Cox, Auckland
MALONE v AUCKLAND FAMILY COURT & MALONE [2014] NZHC 1290 [9 June 2014]
[1] Mrs Malone applies for judicial review of a decision of the Auckland Family Court dated 29 April 2014 in which Judge Adams refused to grant her leave to appeal in relation to interim parenting orders made by him on 27 February 2014. As a consequence of his refusal of leave the Judge declined her application to stay those interim orders.
[2] Because Mrs Malone has concerns for the welfare of her children (in particular her youngest child, Henry) the application for review was granted an urgent hearing, which made her application for interim orders unnecessary. I record, however, that that application would, in my view, have faced significant obstacles.1
Background
[3] Because of the nature of the proceedings in the Family Court and, in particular, the statutory backdrop which requires the interests of the children to be treated as paramount, it is necessary to set out the background to the present matter in some detail.
[4] Mrs Malone is separated from her husband. The couple are embroiled in
Family Court litigation which includes proceedings under the Care of Children Act
2004 (COCA) relating to their minor children Irene (12) and Henry (2).2
[5] On 16 December 2013 Judge Adams made interim orders that involved (inter alia) Henry having weekly overnight visits with his father. Overnight visits had been opposed by Mrs Malone. As I understand it, Mrs Malone applied for leave to appeal that decision but did not ultimately pursue the matter due to the uncertainty of her legal aid position.
[6] On 23 December 2013 Mrs Malone laid a complaint about Judge Adams with the Judicial Conduct Commissioner. The complaint alleged bias on the Judge’s part.
Resolution of that complaint is pending.
1 The most fundamental difficulty is that Mrs Malone has no relevant position to preserve, as required by s 8 of the Judicature Amendment Act 1972. Rather, as will become clear, she seeks to change the status quo.
2 Mrs Malone has another, older, child who is not the subject of the Family Court proceedings.
[7] In January 2014 it appears that Mrs Malone took Henry to her GP. The GP diagnosed him as having “extreme separation anxiety”, the onset of which was thought to have coincided with his weekly overnight visits with Mr Malone. As a consequence, Mrs Malone took Henry to see a psychotherapist, Judith Morris.
[8] Both Mr and Mrs Malone then applied to vary the 16 December interim orders. Mr Malone’s concern was that Mrs Malone was not complying with the orders. Mrs Malone’s principal concern continued to be the overnight access arrangements. Mrs Malone’s application was accompanied by updating evidence, which included a report from the psychotherapist, Ms Morris.
[9] The cross-applications were heard by Judge Adams on 26 February 2014. He issued his decision the following day. I set much of it out verbatim because both its substantive content and the Judge’s mode of expression have assumed some importance in the present proceedings. It is much more detailed than the decision given by the Judge in December 2013.
[10] The Judge began by saying:
[1] I reserved this judgment in order to compose it clearly, with balance. [2] There are cross-applications. Mr [Malone] wants the contact orders
in respect of [Henry] to be enforced by warrant. He also renews his application for an order preventing removal.
[3] Mrs [Malone] submits that the contact orders I made at the interim hearing on 16 December 2013 pose a serious risk to 2-year-old [Henry]’s wellbeing and that they should therefore be varied. In particular, she urges that overnight contact be abandoned for the foreseeable future. She asks that the contact order I made on 16 December 2013 for 12-year-old [Irene] should be discharged because [Irene] will not go and no warrant has been requested to enforce it.
[4] Ms O’Donnell suggests an update on the Court-ordered psychological report to address whether [Henry] is suffering separation anxiety and, if so, what can be done about it.3
[5] The inflammation that infected this file by the hearing of 16
December 2013 has escalated. I recognise the symptoms. The case needs to be managed to avert unwarranted escalation.
[11] Then, he observed:
3 Ms O’Donnell is counsel for the children in the Family Court proceedings.
[6] This case is centrally about the management of family relationships with particular focus on the children. The children must be considered individually; the orders must seek to promote their welfare and best interests; the principles of parental responsibility and cooperation that pervade s 5 need to be considered. Even a child as young as [Henry] will have some views and I need to consider them as best I can. And this is so, even though this is an interim hearing seeking interim orders.
[12] The Judge’s concerns about Mrs Malone’s behaviour since his December judgment were expressed in the following terms:
[10] Mrs [Malone] has been unremittingly active in agitating that Mr [Malone] is unstable and unsafe to have the care of the children. After I assessed Mr [Malone] (on the evidence as at 16 December 2013) as fit to have overnight contact with [Henry], she obtained an opinion from a psychiatrist who had never seen Mr [Malone], to support the proposition that he needed additional testing to check if a head injury posed risk.
[11] Mrs [Malone] appears to adopt the view that [Irene], aged 12, can make up her own mind whether she sees her father. [Irene], when present at a changeover for [Henry], appears to express a similar view with regard to 2- year-old [Henry], that he should be able to decide.
[12] The parties have had highly qualified assistance. Eileen Swan, the s 133 reporter, is an experienced psychologist whose thorough report notes the personality features and behaviours that are likely to be troublesome. She recommended that the parties engage in therapy with Dr Louise Smith, another competent psychologist well known to the Court.
[13] The parties had meetings with Dr Smith, but I find that Mrs [Malone] has taken a positional stance and only engages where she perceives that her position will be supported.
[14] It was disruptive to the process with Dr Smith that Mrs [Malone] engaged Ms Morris, a psychotherapist, who has filed two affidavits within the last two weeks. That strategy undermined the work being attempted by Dr Smith.
[15] Dr Smith counselled the parties about wise management of the changeovers. Some of the changeovers have gone quite well, but at others [Henry] has become distressed. And I am not surprised. I find that Mrs [Malone] has mishandled changeovers and then seeks to justify further restriction based on [Henry]’s understandable behaviour.
[16] Mrs [Malone] has contacted general medical practitioners. Dr Seeley on 16 January 2014 noted, “Four weeks of increasingly distressing behaviour from [Henry] coinciding with new care arrangements with father….” On 17
January Dr Maxwell sent a referral, headed as “Clinical referral”, addressed
to the Family Court but provided to Mrs [Malone], noting, “The above boy
appears to be experiencing separation anxiety associated new shared care
arrangement, in particular overnight stays….”
[17] Ms Morris, the psychotherapist, has addressed articles referred to by Dr Smith. Although … Ms Morris notes, “[Henry] has demonstrated he has a care attachment to his father…” she has the opinion … that, “The instigation of overnights at a stage that was too early for [Henry] to manage has resulted in a shift of attachment status from secure to insecure-ambivalent.” Ms Morris recommends … that, “…overnight stays are discontinued and reinstated at a later stage, when [Henry] has become more resilient.”
[18] I have decided what weight I should give to those professionals who have been engaged by Mrs [Malone], and who receive their information filtered through her. Without regard to the wider context, their opinions, albeit from a partisan corner, recommend an apparently cautious and child- protective stance by suspending the overnight contact.
[19] I am persuaded to take a different approach than that advanced by Mrs [Malone]’ case as a result of the following three features, which I list in no particular order.
Firstly, the energy adopted by Mrs [Malone] is disproportionate. I infer that she is driven by anger against Mr [Malone] in her onslaught.
Secondly, Mrs [Malone] has adopted partisan strategies that thwart a balanced approach to the case. She disputes that I can rely on the report of Eileen Swan because it does not specifically address the discrete question of overnight contact. She derails the therapy with Dr Smith by introducing opposing “experts” to shore up her view. In my view Dr Smith was wise not to become engaged in a negotiation with Ms Morris.
Thirdly, her behaviour surrounding changeovers demonstrates her lack of balance and wisdom.
[13] After setting out his perception of Mrs Malone’s adverse influence on Irene, the Judge said:
[24] Many parents argue that their 2-year-old children would be unhappy away from them for overnight periods. It is true that a 2-year-old will often express upset at changeover periods when they leave the person who is their most familiar caregiver. If the argument of Ms Morris were to be accepted, no child of the age of 2-3 would ever be permitted to spend much time with the other parent. With respect, that view is unbalanced. I am persuaded that [Henry]’s needs for contact fall within the ordinary range and that his psychological wellbeing requires development of a contact pattern within the normal range.
[14] Judge Adams then went on to express the view that he regarded Mrs Malone’s behaviour “as the thin edge of the wedge of alienation”. He determined that it was appropriate to impose escalating orders, backed with warrants, in order to limit the opportunities for Mrs Malone to “wreck the arrangement”. Although he
noted that counsel had asked him to order a further s 133 report “to address, as a
discrete issue, whether Henry is suffering from separation anxiety”, he concluded:
[32] This case is at a crossroads. If I order a further report it will delay setting down for a substantive hearing by some months. If I do not order an additional report, the case could now be set down in the long cause fixtures for a four-day hearing (counsel agreeing that that time is appropriate).
[33] In my judgment the diversion of this case into a further loop is unwarranted. The costs already incurred in this case will be disproportionate and, in the main, they are generated by Mrs [Malone]. Mr [Malone] has responded within reasonable bounds. I predict that further delay will produce more manufactured flurries from Mrs [Malone]. Far better to set the matter down for hearing. On my reading of Eileen Swan’s report, she has a very good understanding of the dynamics, the situation, and the individual parties and children.4 I do not think it is “necessary” for the disposition of the case that an additional s 133 report be obtained.
[15] Lastly, under the heading “What contact orders are made” the Judge said:
[36] Mrs [Malone], having procured advice (which I regard as partisan), chose to disobey the Court orders. The purpose of orders is to impose a lawful situation upon which both parties can rely. On this occasion I shall not (as I have done on a couple of other files recently) refer this matter to the police for prosecution. I warn Mrs [Malone] that any further disobedience of the Court orders will probably result in a Judge referring the case the police with a recommendation that they prosecute her for the special offence that is created under the Care of Children Act.
[37] On 16 December 2013 I had anticipated adjusting contact for [Henry] so that he had alternate weekends free with his mother. As a result of developments since then, I choose to retain contact each weekend in the interim. That will better build the child-father relationship which, until the substantive hearing, is a piece of work that should be developed. If things go well, a different pattern can be contemplated from the substantive hearing.
[38] I find that [Henry] does have a good bond with his father which “clean” changeovers will promote. His own behaviours demonstrate his unhappiness with the way changeovers have been managed. In this respect, my judicial view is aligned with the views of 2-year-old [Henry].
[39] The following contact orders are interim orders. They commence on
6 March 2014.
[40] [Henry] shall have contact with his father on Thursdays from 4:30 pm to 6:30 pm, and from 4:30 pm Saturday to 4:00 pm Sunday each week.
[41] If Thursday contact shall not occur then there shall be additional contact the following week on Tuesday from 4:30 pm to 6:30 pm in addition to the Thursday contact.
4 Eileen Swan is the author of the original s 133 report, which was prepared in November 2013.
[42] If a weekend contact shall not occur then the following weekend the contact shall commence at 10:00 am on Saturday and conclude at 4:00 pm on Sundays.
[43] All weekday changeovers shall take place at English Oaks Park, Albany. [Henry] shall be taken to the changeover by a responsible adult selected by Mrs [Malone]. Mrs [Malone] and the two daughters shall not be present at those changeovers.
[44] The weekend changeovers shall take place at Care for Kids at Milford. Mrs [Malone] shall ensure that [Henry] is deposited at Care for Kids, and that she and her daughters shall be gone from those premises at least 15 minutes before the commencement of contact. Mr [Malone] shall return [Henry] promptly at the conclusion of the contact and he shall be gone from Care for Kids no later than 15 minutes after the end of contact.
[45] Warrants shall issue to enforce these orders on every occasion for the next six weeks. Ms Webster shall instruct Mr [Malone] with regard to the use of those warrants, should they be required.
[46] In the event that a contact period does not occur and the additional contact is engaged, Ms Webster may advise the Registrar who shall issue a warrant without further process.
[16] As foreshadowed by the Judge a four day hearing of the applications for final parenting orders has been allocated in early August this year, but with the possibility of an earlier fixture later this month.5
[17] On 6 March 2014, Mrs Malone applied on a without notice basis for leave to appeal the February decision under s 143(3) of COCA. The grounds for the proposed appeal were articulated as follows:
2.The Family Court has made errors of fact and law which if left unappealed would be unfairly prejudicial to [RACHEL MALONE] when the substantive proceedings are heard thereby likely to cause a miscarriage of justice;
3.The findings of fact which the applicant wishes to appeal include: (i) The finding that [Rachel Malone] is an alienating parent;
(ii) The inference that [Rachel Malone] is driven by anger in wanting to suspend overnights until [Henry] is more resilient;
(iii) The finding that [Rachel Malone] has adopted partisan strategies to thwart a balanced approach to this case;
5 This judgment proceeds on the basis that it is the applications are more likely to be heard in
August.
(iv) The finding that [Rachel Malone]’s behaviour at changeovers demonstrates a lack of balance and wisdom, and that she is “passive aggressive”;
(v) The finding that the medical opinion of Dr Duff as to [John
Malone]’s mental state was thorough;
(vi) The finding that [Rachel Malone] seems to have had difficulty coping with parental responsibilities and the separation; and
(vii) The finding that [Irene]’s attendance at school has been poor.
4. The errors of law which the applicant wishes to appeal are:
(i) Disregarding the expert opinion of Judith Morris as to child welfare contained in her affidavits dated 13 and 21 February
2014 because the Court inferred that [RACHEL MALONE]
was driven by anger; that she “has adopted partisan
strategies that thwart a balanced approach to the case”, and “her behaviour surrounding changeovers demonstrates her lack of balance and wisdom”.
(ii) Disregarding the expert opinion of Judith Morris, in failing to put the best interest and welfare of [HENRY MALONE] as paramount to the decision of the Court;
(iii) Failing to make orders that are in the best interests and welfare of [HENRY MALONE], which is likely to cause him harm; and
(iv) Ordering escalating orders for both children which have been made upon the error of fact that [RACHEL MALONE] is an alienating parent …
[18] At the same time, Mrs Malone also applied for a stay of the orders made by
Judge Adams in his February decision.
[19] On 7 March 2014 the application was referred to Judge Fleming, who said she was not satisfied that either application should proceed on a without notice basis. She said:
Time for filing NOD – 48 hours
Ideally both applications should be heard by the Judge who heard the application and make a determination.
[20] It appears that, at this point, Judge Adams was on leave. No further steps were taken by the Court until after his return. But on 16 April 2014, he made the following direction:
I’ll deal with it [the application] on papers in chambers – all submissions to be filed by 24 April.
[21] On 17 April counsel for the children, Ms O’Donnell, filed submissions in response to the applications. She recorded that since the decision in February:
…
(c) The contact with [Henry] has occurred in two ways:
(i) On a Thursday afternoon, supervised by Judith Morris, the psychotherapist who is employed by the mother. She provides a report to the mother’s lawyer on the conclusion of contact on each occasion. In her most recent report she states (referring to [Henry]):
Overall, he seemed more relaxed than on the previous two access visits.
(ii) Contact is occurring in the weekend with changeover taking place at Care For Kids in Milford. Initially, the changeover was occurring on Saturday afternoons and [Henry] was spending Saturday evenings in his father’s care and then being returned to Care For Kids and transitioned back into his mother’s care on Sunday afternoons. At the suggestion of the Centre Manager, Anna, it was agreed by both parents that the changeover should be varied so that [Henry] would go into his father’s care on Saturday mornings, spend Saturday and Saturday evening with his father and be returned to his mother, with the changeover to occur at Care For Kids on Sunday morning.
It has been reported to me by Anna at Care For Kids that [Henry] is significantly more settled since that change has occurred.
I have obtained a report from Anna at Care For Kids regarding the progress of contact at Care For Kids and a copy of her report and observations from the Centre staff are attached.
…
It seems to be clear from the independent parties that are assisting with changeover that [Henry] is now happy and settled when transitioning into his father’s care. I have not met with him myself again and obviously he remains too young for me to be able to obtain his views and discuss these matters with him.
…
Because of the information that I have received from both Judith Morris and Anna at Care For Kids, that the contact between [sic] [Henry] has been progressing well, there seems to be no reason why contact should be suspended or varied in terms of the Interim Parenting order of February.
[22] The Care For Kids report that was attached to Ms O’Donnell’s submissions
recorded:
At the request of Care For Kids [Henry] attended for familiarisation visits on Saturday 1 March and Sunday 2 March. The first weekend changeover was on 8th March. [Henry] arrived approx 1 hour before the scheduled pick-up time and Mr [Malone] stayed and played with him at the Centre before departing at 4pm, the agreed time.
2 changeovers took place at this end of the day. The 3rd visit Mr [Malone]
cancelled due to sickness.
During those 2 changeovers [Henry] exhibited behaviours which gave staff cause for concern. [Henry] ran in small circles, screaming with his hands open and raised to his shoulders. If anyone came into the room, or approached him or the area in which he was, his screaming became louder and his running in circles more frenetic. He did not respond to staff, even those particularly experienced with small children, neither did he play with the toys. His screams were not accompanied by tears, nor did it sound like a scream of distress, staff described it as more like a blood curdling shriek.
Following the change to Saturday morning changeovers, and advice given to Mrs [Malone] by staff as to strategies to use during changeover, [Henry]’s behaviour changed. He arrived and separated easily from his mother, running down the corridor to the playroom and leaving her in the vestibule.
3 more changeovers have occurred in this way and [Henry] behaves in the same way at both ends of the weekend.
Both parents have been co-operative with the Care For Kids process for changeovers and [Henry] has adjusted extremely well to the routines of the Centre.
[23] On 24 April submissions were filed by both parties in accordance with Judge Adams’ direction. On the same day Ms Abdale filed a memorandum seeking leave to file updating evidence from both Mrs Malone and Ms Morris. The proposed evidence was said to address events that occurred during the eight weeks since the orders of 27 February had been in force. On 28 April, Ms Abdale filed that evidence.
[24] On 29 April 2014 Judge Adams issued his decision on the application for leave and for a stay. I set it out in full. He said:
I have read and considered the submissions filed. My judgment of 27
February 2014 imposed interim orders pending a 4 day hearing. The mother suggests the orders are contrary to the welfare of [Henry], in particular.
However, the report of lawyer for child indicates that [Henry]’s demeanour
is settling. That is what I anticipated.
I do not regard this interim position to be of such welfare risk for either child that Miss Abdale’s client should be indulged with yet another opportunity to re-litigate it.
Interim orders should be available for appeal where they are likely to endure for a long time (so they are cousin to final orders) or where a wrong principle has been applied. My decision relied very much on the non- partisan opinion over the partisan opinion. I note that Judge McHardy on 8
April seems to regret this case as I do.
I refuse leave to appeal. I therefore refuse a stay. If I had granted leave to appeal, I would have stayed the interim orders.
[25] It is this decision to which the present application directly relates.
The statutory context: COCA s 143
[26] It is not necessary to go into detail about the purposes of COCA or the principles underlying that Act; they are well known. It is sufficient to record that its fundamental objects are the promotion of children’s welfare and best interests and the facilitation of their development. The Act achieves those objects by helping to ensure that appropriate arrangements are in place for their guardianship and care. The welfare and best interests of the child are required to be the paramount consideration in administering the Act, and in all proceedings taken under it, such as the proceedings in the present case.
[27] Section 143 of the Act governs appeals to the High Court from decisions made by the District Court or the Family Court in COCA proceedings. There is an appeal as of right in relation to most substantive decisions that are final in nature: s 143(1). The ambit of this provision tends to be strictly (narrowly) construed. 6
[28] Section 143(3) provides that interlocutory or interim orders may only be appealed with the leave of the Family (or District) Court. In T v E the Family Court explained the rationale for the leave requirement in the following way:7
The policy reason behind this section is to prevent proceedings in the Family Court being unduly protracted. If there was an automatic right to appeal of interim decisions, then a person who had greater resources or wanted to use tactical procedures could appeal such decisions, and with the normal time frames that would pass before the appeal is to be dealt with, it could make any particular case unduly protracted. Parliament considers the better course of action is to have the case concluded and then when a final order is made that can be the subject of an appeal. The High Court can reverse the decision if satisfied that the appeal has merit. Also the Family Court is a specialist Court and deals with issues arising in this case on a daily basis.
[29] It is plain that, for the reasons articulated in the above passage, the Family Court is required by s 143(3) to play what has been described as a “gate-keeping” role in relation to interlocutory appeals. It is not necessarily the case that the factors commonly regarded as relevant to the grant of leave for second-tier appeals can
simply be applied to the exercise of the s 143(3) discretion mutatis mutandis.8 The
relevant matters that the authorities suggest are to be taken into account in determining an application for leave have been summarised by the Family Court (in the analogous Guardianship Act context) as follows:9
(a) The welfare of the child, which is the first and paramount consideration;10
(b)The interests of justice including the interest in the finality of litigation;11
(c) The nature of the interlocutory order in respect of which leave to appeal is sought and, in particular, whether it was procedural only and what effect it is likely to have on the ultimate outcome of the case;12
(d)The nature and importance of the proceedings generally whether from the point of view of legal principle or importance to the parties;13
8 Those factors being those which are summarised in Waller v Hider [1998] 1 NZLR 412 (CA).
9 B v W FC Taupo FAM-2003-069-101, 18 January 2005.
10 Stadniczenko v Stadniczenko (1995) 13 FRNZ 145; [1995] NZFLR 493 (CA).
11 Sandle v Stewart [1982] 1 NZLR 708 (CA) and BDD v IBG [application for leave to appeal]
(2006) 25 FRNZ 697, [2006] NZFLR 862 (CA) also reported as BDD v IBG [Parenting order].
12 Hardy v Hardy (1988) 4 FRNZ 386, (1988) 5 NZFLR 184 (HC).
(e) The importance of the proceedings to the child and any prejudice likely to be suffered by the child as a result of the grant or refusal of leave;14 and
(f) The effect on the child and on the other party of any delay resulting from the granting of leave to appeal and hearing of the subsequent appeal.15
The application for review
[30] As I have said, the plaintiff seeks review of Judge Adams’ April decision declining her leave to appeal and (consequently) refusing a stay of the February interim orders. The grounds for review are expressed in the statement of claim as follows:
The learned Family Court Judge erred in the exercise of his discretion in failing to grant leave to appeal and stay of execution of judgment pending outcome of appeal, in that he:
(a) Failed to take into account the welfare and best interests of the subject child as the first and paramount consideration which was the test to be applied
(b) Failed to take into account updating evidence (including updating expert evidence) as to the welfare and best interests of the child; which evidence indicated that the subject child was still suffering from separation anxiety disorder as a result of the overnight contact ordered, and as a result was suffering harm
(c) Made a decision influenced by the erroneous finding in his decision that the plaintiff was an alienating parent, which decision the plaintiff sought leave to appeal;
(d) Failed to follow or distinguish relevant case law submitted; and
(e) Failed to provide adequate/any reasons for his decisions.
[31] Ms Abdale also filed further updating affidavits from her client and from Ms
Morris In support of the application for review.
14 BDD v IBG [application for leave to appeal], above n 11.
Discussion
[32] Ms Webster accepted, as do I, that in declining leave to appeal and refusing a stay, Judge Adams was exercising statutory powers of decision that are prima facie reviewable under the Judicature Amendment Act 1972. Because the Judge made it clear in his decision that if he had granted leave to appeal he would have granted a stay, it is only the decision declining leave that is relevant for present purposes.
[33] I propose to address each of the pleaded grounds of review in turn.
Failure to take into account paramountcy of Henry’s welfare and best interests
[34] It is accepted that, as in all matters arising under COCA, the welfare and best interests of the relevant child or children should have been the paramount consideration for the Judge when determining whether to grant leave.
[35] The principal difficulty with contending on review that Judge Adams did not give primacy to this consideration is that his decision of 27 February and his decision of 29 April were both firmly and expressly based on his assessment/evaluation of Henry’s welfare and best interests. Notwithstanding the brevity of his decision, the Judge explicitly:
(a) referred to and relied on the counsel for the child’s assessment that
Henry’s behaviour was becoming more settled;
(b) reiterated his reservations about the partisan nature of MsMorris’
contrary assessment;
(c) recorded his view that the identified welfare risk was not so great as to warrant further relitigation (ie an appeal on top of the applications for variation); and
(d) turned his mind to the other factors to which I have referred at [29]
above.16
[36] It cannot therefore tenably be said that the Judge did not turn his mind to Henry’s welfare or that he did not take (his assessment of) it into account. On the contrary, his decisions were clearly driven by it.
[37] It seems to me that what Mrs Malone is really asking this Court to do is to take a view about Henry’s welfare and best interests that is different from that of the learned Judge. That is the thrust of the updating affidavits filed on her behalf. Even putting to one side the reservations which I share with Judge Adams about the partisan nature of the relevant evidence, it is not the function of an application for judicial review to engage with the factual merits of the impugned decision. As
French J said in Aorangi School Board of Trustees v Minister of Education: 17
… contrary to popular belief, judicial review is not an appeal. It is not about the Court considering the information afresh and coming to its own views. Judicial review is primarily limited to an examination of the process, and if successful usually results in the decision-maker being required to start afresh, as opposed to quashing the decision for all time.
Failure to take into account updating evidence
[38] I accept that Judge Adams did not refer in his 29 April decision to the updating evidence filed by Ms Abdale. She nonetheless obtained subsequent confirmation from the Family Court that the new evidence had been on the file that was before the Judge. It is not possible to be certain that the Judge did, or did not, read that evidence.
[39] But even on the assumption that he did not, in fact, read the new affidavits, the reality is that:
(a) leave to file them had not been granted;
(b) the Judge did take into account counsel for the child’s updating report
and the Care For Kids report;
(c) the new evidence filed by Ms Abdale did not in any event suggest that irreparable harm would be done to Henry if the existing care
arrangements continued for the short period between the date of the leave decision and the pending four day substantive hearing (which would occur in early August at the latest).
[40] Moreover, it seems to me that had the Judge read the updating evidence filed by Ms Abdale, his former views about Ms Morris’ “capture” by Mrs Malone would almost certainly have been reinforced. That is because the affidavits disclose that, in response to the Court’s order that Mrs Malone select a “responsible adult” to take Henry to and from the changeovers with Mr Malone, Mrs Malone had appointed Ms Morris to undertake that task. I merely record that, notwithstanding Ms Morris’s undoubted professional credentials, the wisdom of Mrs Malone doing this is far from apparent to me. In particular:
(a) it is difficult not to perceive the appointment as entrenching Ms
Morris even more firmly in Mrs Malone’s “camp”; and
(b)rather than retaining whatever objective distance Ms Morris had formerly been able to muster, her appointment has indisputably rendered her an actor in the factual narrative of the disputed access arrangements; and
(c) the resulting reality for Henry is that, on each access occasion, he is being parted from his mother by a relative stranger. It is difficult to see how that might ease any separation anxiety form which he is suffering. In those circumstances it is potentially a long and unfair bow to attribute any ongoing anxiety around access to Mr Malone.
Taking into account his view that Mrs Malone was an alienating parent
[41] I do not consider that the 29 April decision can fairly be said to be based either wholly or in part on Judge Adams’ view that Mrs Malone was an alienating parent. Although the decision does reiterate or reflect aspects of the findings made in his earlier (February) decision, the specific finding of alienating behaviour is not one of them. But even if that were not the case, the Judge’s finding in that respect might well have been relevant to his consideration of Henry’s best interests, when
considering whether leave should be granted. That parental conduct can be a relevant factor is made clear by s 4(3) of COCA. And it is not open to me in these review proceedings to revisit the Judge’s assessment in that respect.
[42] For completeness I record that Ms Abdale took particular exception to the Judge’s use in his decision of the word “indulged”.18 She said that this indicated an unwarranted and unfair degree of animus by the Judge towards her client. But I think care needs to be taken not to over-interpret the word. The concept of “indulgence” is often used to describe the grant of certain kinds of leave (in particular special leave for an extension of time) and while it may not generally be apt in a COCA s 143(3) context, the Judge no doubt had in mind the fact that Mrs Malone had already been given the opportunity to relitigate the interim orders once
(in February).
Failure to follow or distinguish relevant case law submitted
[43] Failure to apply the relevant law can constitute a reviewable error.
[44] In the present instance, the “case law” submitted by Ms Abdale comprised the authorities relating to applications for leave to which I have referred at [29] above.
[45] The relevant considerations set out in those authorities (which are really just reflective of COCA principles) are all intensely fact specific. They require a nuanced evaluative approach by the Judge tasked with applying them in any given case. For that reason, the need to “follow” or “distinguish” other cases does not arise in any ordinary sense; the outcome in other cases are not instructive when assessing the needs of a family whose circumstances are unique. Thus the notion of precedent, strictly so-called, appears to me to be inapplicable.
[46] That said, however, I accept that the considerations set out in those cases do need to be applied to the circumstances of each case. But that is what Judge Adams has done. In particular, it seems to me to be evident on the face of the 29 April
decision that he:
18 “I do not regard this interim position to be of such welfare risk for either child that Miss
Abdale’s client should be indulged with yet another opportunity to re-litigate it.”
(a) took into account counsel for the child’s report that Henry is settling;19
(b)did not consider that there was any welfare risk that would warrant the grant of leave;20
(c) considered that further relitigation was undesirable;21
(d)noted the fact that the orders were interim only and that they would be superseded following the imminent final hearing;22
(e) recorded his view that his February decision turned on whose evidence the Judge preferred (and this that this was not a case where there was a possibility that a wrong principle had been applied).23
[47] So, notwithstanding the brevity of the Judge’s decision I can see no basis in it
for this ground of review.
Failure to provide adequate/any reasons for decision
[48] The leading New Zealand authority on the requirement to give reasons continues to be the Court of Appeal’s decision Lewis v Wilson & Horton Ltd.24 In that case Elias CJ (speaking for the Court) set out the “three main reasons why the provision of reasons by Judges is desirable”.25 In brief, they are:26
(a) the part that reasons play in the open administration of justice;
(b)their necessity in order that a court exercising supervisory jurisdiction may assess the lawfulness of the decision in question;
19 See [29](a) above: the first and paramount consideration, the welfare of the child.
20 See [29](e) above: any likely prejudice to the child that might result of the grant or refusal of leave.
21 See [29](b) above: the interests of justice including the interest in the finality of litigation.
22 See [29](c) above: the nature of the order in respect of which leave to appeal is sought and, in particular, what effect it is likely to have on the ultimate outcome of the case.
23 See [29](d) above: the nature and importance of the proceedings generally, from the point of view of legal principle.
24 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546, (2000) 18 CRNZ 55 (CA).
25 At [76].
26 At [76] – [82].
(c) the discipline they provide for the Judge (which is the best protection against wrong or arbitrary decisions and inconsistent delivery of justice).
[49] The Court also observed, however, that there was (as yet) no “inflexible rule of universal application” in New Zealand that reasons must in all cases be given. It noted that reasons may be abbreviated and that in some cases they will be evident without express reference. The Court said:27
What is necessary, and why it is necessary was described in relation to the Civil Service Appeal Board (a body which carried out a judicial function) by Lord Donaldson MR in R v Civil Service Appeal Board, ex parte Cunningham:
“the board should have given outline reasons sufficient to show to what they were directing their mind and thereby indirectly showing not whether their decision was right or wrong, which is a matter solely for them, but whether their decision was lawful. Any other conclusion would reduce the board to the status of a free-wheeling palm tree.”
(Citations omitted)
[50] In my view there is no basis for concluding that Judge Adams’ was in danger of becoming a free-wheeling palm tree. For the reasons I have already given, his April decision, when read in conjunction with his February decision, shows quite clearly the matters to which he directed his mind. It appears to me that those matters were the right ones for him to consider. And once that position is reached, it is not for this Court on review to second-guess the rightness or wrongness of the conclusions that he reached.
Discretion
[51] It follows from what I have said above that I do not consider that any of the pleaded grounds for review have been established. For completeness, however, I record that had I come to a different conclusion I would have been likely to refuse relief, as a matter of discretion. I briefly give my reasons (in no particular order)
below.
27 At [81].
[52] First, even if I had found that Judge Adams’ decision disclosed a reviewable error, the reality is that there is less than two months before the final hearing of the parenting orders matters. I doubt very much that Mrs Malone’s appeal would be determined by that time, whatever this Court might do to expedite the matter. And there is, as I have said, no evidence that Henry will be suffer irreparable harm during the very short remaining period in which the interim parenting orders will remain in force.
[53] Secondly, except in a very clear-cut case of fundamental error, there is a risk that the grant of an application for review of a decision made under s 143(3) would undermine the policy objectives that underlie that provision.
[54] Thirdly, and in terms of an evaluation of Henry’s best interests, I share Judge Adams’ reservations about the weight that should be accorded to Ms Morris’ evidence. Even if her evidence is admissible at all28 she now appears to me to be so embedded with Mrs Malone and the day to day access arrangements, that she simply cannot have the necessary objectivity. The evidential basis for interfering with the current access arrangements is therefore weak, at best.
[55] Fourthly, the adverse factual findings with which Mrs Malone’s proposed appeal is concerned are not, it seems to me, binding on the Judge who conducts the August hearing, which potentially has a curative effect. And given the complaint that Mrs Malone has made to the Judicial Complaints Commissioner it seems to me unlikely that Judge Adams will preside. On the other hand, if those findings are reiterated or have some residual influence on any final orders made, they can be addressed in an appeal from those orders. That appears to me the appropriate course.
As Fogarty J has recently said in BLH v MNL:29
[25] There are obvious policy reasons for Parliament preventing satellite litigation; appeals to the High Court in the course of the Family Court resolving the issues in a set of proceedings. The goal of this litigation in the Family Court is for the Court to settle the shared parenting of this child because the parents themselves cannot agree. I think the restraints on
28 Which is debatable, given that she had not, by the date of the hearing before me, met the standard pre-requisites for expert witnesses. In particular, in none of her affidavits filed in either the Family Court or this Court did Ms Morris say that she had read, and agreed to abide by, the Code of Conduct for Expert Witnesses.
29 BLH v MNL above n 6.
appeals in each of the Domestic Violence Act 1995, Care of Children Act
2004, and Family Proceedings Act 1980 are intended to ensure that the whole process is completed in the Family Court before there is a right of
appeal.
[56] Lastly, I have some doubt as to what the effect of granting a stay of the February decision pending the appeal would be. There is at least an argument (which was advanced by Ms Webster) that the earlier, December interim orders would merely, at that point, be revivified. Those orders are essentially the same as the February orders, but without the “escalating” effect.
Conclusion
[57] I have formed the view that none of the pleaded grounds of review have been made out. Even if I am wrong in that conclusion, I would, in any event have declined relief as a matter of discretion. The application for judicial review is dismissed accordingly.
Costs
[58] Mrs Malone has previously been in receipt of a grant of legal aid in respect of some of the Family Court proceedings. She has applied for legal aid in relation to these proceedings but no decision had been made as at the date of the hearing before me. Ms Webster sought costs on a scale 2B basis and in my view Mr Malone is entitled to them.
[59] Accordingly I direct that Mrs Malone is to pay Mr Malone costs in the sum of
$12,338, together with disbursements of $110. If legal aid has been granted in the five days that have elapsed between the dates of hearing and of this decision, Ms Abdale is to advise the Court.
Anonymisation
[60] I record that I have used fictional names for Henry, Irene and the parties in this judgment to protect their identity.
Rebecca Ellis J
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