Millier v Family Court at New Plymouth
[2024] NZHC 1636
•20 June 2024
NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018 AND 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. FOR FURTHER INFORMATION, PLEASE SEE
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IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV-2024-443-017
[2024] NZHC 1636
UNDER Part 30 of the High Court Rules 2016 and the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for judicial review of a decision under the Care of Children Act 2004
BETWEEN
HAMISH MILLIER
Applicant
AND
THE FAMILY COURT AT NEW PLYMOUTH
First Respondent
MELISSA BARCLAY
Second Respondent
Hearing: 11 June 2024 Counsel:
S R Morris for Applicant
Appearance Excused for First Respondent
R S Stannard for Second Defendant (via VMR) J M Woodcock for Counsel to Assist (via VMR) L P Manning for Child
Judgment:
20 June 2024
JUDGMENT OF McQUEEN J
MILLIER v THE FAMILY COURT AT NEW PLYMOUTH [2024] NZHC 1636
Table of Contents
Para Nos
What happened? [5]
Background [5]
Lead up to the short-cause hearing in February 2024 [13]
The February hearing [23]
Application for judicial review [35]
Care of Children Act 2004 [41]
First cause of action—Did the Judge fail to exercise his statutory power of decision? [43]
Is judicial review available to Mr Miller? [53]
Remaining causes of action—breach of natural justice, bias and
pre-determination [60]
What does natural justice generally require? [63] The interaction between natural justice and without notice applications [65] Apparent bias and pre-determination [71]
Analysis [77]
Relief [98]
Result [101]
Costs [102]
[1] This application for judicial review concerns Harriet, a nine year old child, and her parent figures, Mr Hamish Miller and Ms Melissa Barclay.1 On 1 September 2023, Ms Barclay made a without notice application to suspend Mr Miller’s contact with Harriet. An interim order was made to this effect. Mr Miller applied to vary that interim order. A short cause hearing took place on 13 February 2024, with the Judge issuing his reserved decision on 20 February 2024. Mr Miller seeks judicial review of
1 I have used fictitious names in this judgment to protect the privacy of the children and the parties.
the alleged failure of the Judge to exercise his statutory power to vary the interim order suspending Mr Miller’s contact with Harriet.
[2]Ms Barclay and the Family Court abide the decision of the Court.
[3] Counsel to assist the Court, Ms Woodcock, was appointed given the absence of a contradictor, and I thank her for her assistance.
[4] For the reasons set out below, I decline Mr Miller’s application for judicial review.
What happened?
Background
[5] In the Judgment, the Judge provided an extensive chronology of the background to litigation between the parties, which took 19 pages to traverse.2 The following paragraphs draw on that background so far as it is material to the application for judicial review—there are many other entries.
[6] Mr Miller and Ms Barclay are not Harriet’s biological parents. Harriet’s mother was Ms Barclay’s late sister, who died in a car accident when Harriet was only a few days old. Ms Barclay took on care of Harriet since then. Mr Miller took on care of Harriet when he and Ms Barclay began a relationship when Harriet was very young. Both Ms Barclay and Mr Miller think of Harriet as their daughter. Ms Barclay is Harriet’s guardian. Mr Miller has applied to be appointed as Harriet’s guardian; this application is yet to be determined.
[7] Mr Miller and Ms Barclay were in a relationship for just over four years before separating in March 2019 (with a further brief period through to 2020). During that time, they had two biological daughters together, now aged eight and six respectively. Mr Miller has an older son from a previous relationship. Since their separation, Mr Miller and Ms Barclay have been involved in extensive proceedings in the Family Court relating to the care of both Harriet and their two other children.
2 At [10]–[115], covering the period between 7 November 2014 and 9 February 2024.
[8] Allegations are made by each of Mr Miller and Ms Barclay about the other. Broadly speaking, these relate to psychological abuse (of each other and of the children), mental illness, alcoholism and physical abuse.
[9] In 2019 and 2021 respectively, the Family Court made two final parenting orders that mandate the shared care of Harriet, both coming about after the parents reached agreement.3 However, following an application without notice by Ms Barclay to suspend Mr Miller’s contact with all three children and for a protection order on 9 August 2021, the Family Court found that Mr Miller had engaged in psychological family violence. On 9 October 2021, following a short cause hearing, the Court granted a temporary protection order and ordered that Mr Miller could have contact with all three children every second weekend so long as he complied with conditions around his alcohol use.
[10] Despite the allegations and ongoing disputes, the pair did not remain separated. In early 2022, Ms Barclay tried to discontinue the proceedings, saying the pair were in a relationship again. However, Ms Barclay also disclosed to a psychologist writing a report pursuant to s 133 of the Care of Children Act 2004 (the Act) that Mr Miller’s violent behaviour had resumed while they were back together. It was at this time that another child was conceived. He is now a toddler.
[11] Oranga Tamariki convened a family group conference, following which it was agreed that the parents would live apart with all children receiving shared care in a 2:2:3 arrangement. A parenting order was made by consent on 15 March 2023 in relation to shared care between Mr Miller and Ms Barclay for Harriet and her sisters. In June 2023, Mr Miller made an application for a parenting order in relation to the young son, to whom the parenting order did not relate. Mr Miller also applied without notice to resolve a dispute as to vaccinations for the young son. This application was placed on notice.
[12] In August 2023, an interim parenting order for the young son was made by consent and the immunisation issue time-tabled to a short cause hearing.
3 One order was made on 16 October 2019 and the other was made on 31 March 2021.
Lead up to the short-cause hearing in February 2024
[13] On 1 September 2023, Ms Barclay filed a without notice application in the Family Court seeking to suspend Mr Miller's contact with Harriet on the basis of allegations of mistreatment and psychological abuse by Mr Miller. She asserted that Harriet did not wish to have contact with Mr Miller. An interim order varying the parenting order with the effect of suspending Mr Miller’s care of Harriet (the Interim Order) was granted the same day by Judge Morrison, who said:
While the respondent has a right to be heard in relation to the allegations made about his mistreatment and psychological abuse of [Harriet] by way of verbal abuse, which has occurred in front of others and which [Harriet] has disclosed to both [Ms Barclay] and her maternal grandmother on separate occasions, I am concerned regarding the evidence that [Harriet]'s usual happy and settled demeanour has deteriorated significantly over the past few months, to the point she is now asking not to have any contact with [Mr Miller] whatsoever, despite the fact her other ‘siblings’ attend contact.
I am satisfied it is appropriate to suspend [Mr Miller’s] contact with [Harriet] on an interim basis to allow urgent enquiries to be made, and Lawyer for Child to report.
[14] The Interim Order was to have effect until the first judicial directions conference for the matter, when it could be reviewed.
[15] On 11 September 2023, Mr Miller filed a notice of response to Ms Barclay’s application without notice and supporting affidavit. He disputed what Ms Barclay had said in support of her application. Mr Miller indicated he wished to be heard before any final decision was made.
[16] At a judicial directions hearing on 26 September, Judge Greig directed a variation to Mr Miller’s contact with the young son and made orders in relation to progressing Mr Miller’s application for further contact with him to a hearing, at which the young son’s vaccinations would also be considered. In relation to Harriet, the Judge ordered the Interim Order remain in place, despite Mr Miller’s request that it be varied.4 Ms Manning, lawyer for the child, had advocated for Mr Miller’s contact with Harriet to remain suspended, on the basis of disclosures Harriet had made to her expressing that she wanted to stay with Ms Barclay all the time, she did not want to
4 [Miller] v [Barclay] [2023] NZFC 10996.
go to Mr Miller’s house and she got told off more than her sisters. This was essentially replicated in the report from Oranga Tamariki.
[17] The Judge mentioned the possibility of supervised contact but indicated that he could not make such an order at that stage without Ms Barclay’s consent (which was not given) because he would be varying an order made by another judge.5 The Judge directed a report under s 132 of the Act and mentioned that it may be necessary to commission a report under s 133 of the Act, while noting that this would import a nine month delay given the difficulties in obtaining a s 133 report in Taranaki.6 The Judge adjourned the matter to a case management review on 19 December 2023 or an earlier date if the s 132 report became available.
[18] In November 2023, Mr Miller filed an on notice application seeking primary care of all four children, alleging drunken and aggressive behaviour by Ms Barclay, pending a final hearing. He also applied for a protection order. Ms Barclay filed a notice of response to these matters and also to Mr Miller’s application to be appointed Harriet’s guardian. Ms Barclay disputed Mr Miller’s factual account.
[19] On 4 December 2023, an issues conference was held. The Judge ordered a half day hearing to be set down, when the issue of Harriet’s contact with Mr Miller would be heard at the same time (the Judge said “an interim hearing most likely”) as well as other issues to do with the young son.7 He ordered that the s 132 report was to include Harriet and also ordered a s 133 report in relation to all the children.
[20] Two s 132 reports were provided on 1 February 2024. The report relating to Harriet highlighted several points:
(a)a Child and Family Assessment completed in April 2021 found all three daughters had been emotionally abused by both parties;
5 At [16].
6 A report under s 132 of the Care of Children Act 2004 is a report from a social work at Oranga Tamariki while a report under s 133 of the Care of Children Act is a report from other persons, including a psychologist.
7 [Barclay] v [Miller] FC New Plymouth FAM-2019-043-000092, 4 December 2023 (Minute of Judge Grieg) at [4].
(b)a Child and Family Assessment completed after Ms Barclay’s application without notice in September 2023 found that Mr Miller had emotionally abused Harriet.
(c)Oranga Tamariki records show that professionals involved with Mr Miller and Ms Barclay have had concerns that:
(i)their relationship is characterised by an imbalance of power and control in that Mr Miller subjugates Ms Barclay and has subjected her to psychological, financial and sexual abuse;
(ii)neither parent is effective at protecting the children from this dynamic; and
(iii)Mr Miller has emotionally abused Harriet as a result of his treatment of her.
(d)Mr Miller is unreceptive to believing that Harriet does not want a relationship with him, believing she has been influenced by Ms Barclay;
(e)Harriet having expressed positive feelings toward Mr Miller does not necessarily minimise her expressions of negative feelings toward him:
In his affidavit dated 19 October 2023 [Mr Miller] has shared text messages and photographs with the Family Court, which he has presented as evidence that [Harriet] is missing him and wants to visit. [Harriet] is 9, she is developing her understanding of the world and relationships and can be expected to change her mind with respect to her feelings and what she wants at a reasonably rapid rate. I would caution any immediate interpretation of [Harriet’s] feelings on the basis of text communication, The mixed messages being reported, regarding her desire to have contact with [Mr Miller], are not necessarily an indication she has been lying or has been told to say negative things about [Mr Miller], but possibly an indication that as a 9-year-old girl she is also missing the positive aspects of the relationship she has had with [Mr Miller], while not wanting to experience the negative aspects of that contact as she has described it.
[21] In a report dated 7 February 2024, lawyer for the child, Ms Manning, stated that Harriet maintained her views. Ms Manning said:
a)She does not want to see [Mr Miller] and go to his home for contact.
b)If she had to go to contact, she would go somewhere else at pick up time, so she did not have to go.
c)Counsel talked with [Harriet] about what she would do if she saw [Mr Miller]. [Harriet] initially thought she would say nothing but then reconsidered and said she would say “hello” but nothing else.
[22] Counsel for Mr Miller confirmed that Ms Barclay and her mother were required for cross-examination.
The February hearing
[23] The short-cause hearing was set down for 13 February 2024 (the February hearing).
[24] Counsel for Mr Miller provided written submissions for the February hearing. Those submissions record that Mr Miller was seeking that the Interim Order be discharged, and the final parenting order dated 15 March 2023 resume. Mr Miller was also seeking a variation to the interim parenting orders made in relation to the young son to provide Mr Miller with increased care of him, and an order that the young son be vaccinated. An additional issue was canvassed at the February hearing as to Ms Barclay’s desire to take the children to Australia for a family wedding.
[25] Although the hearing was set down for three hours, a four hour hearing ensued, the Judge continuing through the lunch adjournment, prior to his commitment to carrying out other court obligations at 2 pm. Mr Miller, Ms Barclay, Ms Barclay’s mother, and the social worker who wrote the s 132 report all gave evidence (and to an extent, were cross-examined). As will be discussed further, the Judge also met with Harriet immediately prior to the hearing, this having been requested on her behalf by Ms Manning.
[26] The Judge issued his reserved judgment on 20 February 2024 (the Judgment).8 At this point, I set out relevant parts of the Judgment. However, notes of evidence for the February hearing have also been provided for the purpose of the present application.
[27] At the beginning of the Judgment, the Judge said that there were four issues to be decided. He said that he would provide reasons on two issues he had indicated the outcome of at the hearing (the issues of the young son’s vaccinations and the overseas travel), that he would give the outcome and reasons for a third issue (the young son’s care arrangements) and that “the fourth issue was not determined” and he would give reasons why that was the case (this being the issue about Mr Miller’s care of Harriet).
[28] After setting out the chronology, the Judge made some general observations. He said:
[120] When going over the chronology that I have set out I am filled with a sense of deep regret verging on shame when I see the number of applications that these two parents have made, some of them utterly ridiculous, along with the volume of affidavits that they have filed. The Family Court file stands 30 cm high, the bundle of documents for the short cause hearing extended to six volumes, including one volume of authorities. With the exception of one affidavit, the bundle only contained documents generated since March 2023. Almost all the affidavits contained multiple repetitions of allegations and assertions made in previous affidavits. Several affidavits were needlessly expanded by the apparent need to attach a number of previous affidavits as exhibits.
[121] The regret comes from the inability to protect these children who, I have no doubt, are being harmed by the extensive litigation, litigation that of course frames the parents’ relationship with each other and with the children.
[122] The volume of evidence was one reason why it was not possible to deal with all of the issues at a short hearing.
[123] During the hearing itself counsel found it necessary to cross-examine on issues directly relating to whether [Harriet’s] contact with [Mr Miller] should be reinstated. It was not necessary as I had signalled very clearly at the beginning that I was not going to consider the issues around [Harriet]. A short cause hearing should take two to three hours. I extended this hearing by a further hour, sitting right through the lunch break until 2 pm but still had to bring cross-examination of the social worker to an early halt, to bring matters to a close and meet my 2 pm court commitment. At the conclusion of the short cause hearing I adjourned the issue of [Harriet] part heard, to be resumed once the psychologist’s evidence is available.
8 [Barclay] v [Miller] [2024] NZFC 1544.
[29] The Judge then turned to address the question of Harriet. He summarised the evidence from Ms Barclay and Mr Miller. In essence, Ms Barclay says that Harriet’s strong opposition to contact with Mr Miller is due to his ill-treatment of Harriet and of Ms Barclay herself, while Mr Miller says he has never ill-treated Harriet, he regards her as his own child, and her views are being influenced by Ms Barclay and her family. The Judge then went on to state:
[129] [Harriet] had asked to meet me prior to the hearing. Whilst not every child wants to meet the Judge it is certainly a reasonably common request. What is not common however is the reaction that I witnessed when I asked [Harriet] how she would feel if I simply left the parenting order expressed in such a way that she had control over when she had contact with [Mr Miller]; she could have contact if she wished but would never be made to have contact.
[130] [Harriet] broke down in tears. She became quite distraught. She sobbed and it took her some minutes before she could speak. She said: “I don’t want to go there ever again.” She reiterated that she felt she was treated differently from her two sisters. She was clear that her expressed wishes are her own and not influenced by anyone else. She told me that she would miss the motorbikes that are available at [Mr Miller’s] house (he is a farmer) but nothing else.
[30] The Judge observed that a short-cause hearing was not an appropriate forum to deal with complicated issues, such as the resist/refuse dynamic that children can develop, nor for resolving multiple issues.9 He noted that the hearing had in fact originally been set down to only determine whether or not Harriet’s contact with her father should continue to be suspended in the interim until a substantive hearing and whether or not Mr Miller’s contact with the young son should be extended. The Judge observed that the issue of vaccinations and the overseas holiday had “somehow crept into the hearing as well”.
[31] The Judge recorded that counsel for Mr Miller had “very firmly pressed” for the s 133 report, while everyone knew that this would take about nine months to complete.10 (It is however accepted by the parties and counsel for Harriet that this statement is incorrect. It appears that it was counsel for Ms Barclay who sought the report.)
9 At [131].
10 At [132].
[32]The Judge reiterated the parties’ positions and said:
[135] Having met with [Harriet] I formed the clear view that I was not in a position to determine the issue on the basis of the evidence in front of me. If [Harriet] has been illtreated by [Mr Miller], then contact remains out of the question. Having heard all of the evidence I also cannot possibly dismiss the suggestion that [Harriet] is reflecting views she believes adults want to hear. That is a dynamic well-known to any judge sitting in the Family Court. That could easily explain the distress that she exhibited; that she does very much want to see the man she regards as her father but is being prevented from doing so.
[136] I therefore declared at the beginning of the hearing that I was not going to deal with the issue of [Harriet’s] contact with [Mr Miller].
[137] On behalf of [Mr Miller], who was noticeably upset by this announcement, Ms Crawshaw urged me to reconsider. In my judgement it would be reckless to assert, on the basis of [Mr Miller’s] word, that [Harriet] was: (a) entirely safe in his care; and (b) that there was no risk in forcing an unwilling child to have contact.
[138] This is particularly so given the findings that I have made against [Mr Miller] in the past. I cannot simply dismiss the suggestion that he has ill- treated [Harriet] and/or that [Harriet] is reacting to witnessing her mother being ill-treated.
[139] Both scenarios are equally possible at present. Even if [Harriet] is not being illtreated but is reflecting what she thinks the adults around her wish to say, then it still needs specialist advice on how to reintroduce [Mr Miller] into [Harriet’s] life. [Ms Barclay] has on occasion acted violently towards [Mr Miller]. Could [Harriet] be reacting to that? For me to simply direct that there will be contact between [Mr Miller] and [Harriet] in terms of the March 2023 order would be an act of recklessness.
[140] Finally, given the toxic and dysfunctional relationship that these parents have always had and continue to have, I cannot dismiss the thought that [Harriet] is simply being used by one to hurt the other or by one to try and exert control over the other.
[33] In April 2024, the Judge consolidated the family violence and care of children proceedings. A two day hearing was scheduled for 24 and 25 June 2024.
[34] By memorandum, counsel for Mr Miller requested that Judge Greig recuse himself. The Judge issued a minute on 24 April 2024 recording that no reasons were provided for that request, that he was not aware of reasons why he should do so and declining the request.
Application for judicial review
[35] The statement of claim identifies two decisions described as being under review, firstly directions made at the February hearing and second, the Judgment.
[36] The first cause of action pleads that the learned Family Court Judge failed to exercise his statutory power of decision in the following ways:
(a)Despite the issues concerning Harriet being set down for hearing, refusing to make a decision about Harriet’s care.
(b)Despite Mr Miller’s opposition to the without notice orders being set down for hearing, refusing to make any findings as to safety issues that led to the without notice order suspending his contact with Harriet being made on 1 September 2023.
(c)Making inconsistent directions within the hearing as to whether cross- examination of the parties on the issue of Harriet’s care was permitted.
(d)Failing to consider whether any change to the without notice orders should be made, including but not limited to whether supervised contact was appropriate.
[37] The second cause of action pleads breach of natural justice. It is alleged that Mr Miller was not given an opportunity to be heard and that the Judge’s failure to make “safety findings” or to make an interim order was a breach of natural justice given the existing order was made on a without notice basis.
[38] The third cause of action pleads pre-determination by the Judge. It is alleged that the Judge did not approach the February hearing with an open mind and that he failed to objectively consider the evidence concerning safety issues and Mr Miller’s care of Harriet, by refusing to hear evidence on that issue at the hearing.
[39] The fourth cause of action pleads apparent bias by the Judge. It is alleged that the Judge, having refused to allow Mr Miller to be cross-examined, relied on an earlier
finding made about his credibility at a previous hearing and made other comments about Mr Miller based on earlier litigation. It is alleged that the apparent bias led to a breach of natural justice and a substantial miscarriage of justice.
[40]In respect of all the causes of action, Mr Miller seeks the following relief:
(a)A direction that the without notice application to vary the parenting orders to suspend Mr Miller’s care of Harriet be set down for a priority fixture.
(b)An order recusing the Family Court Judge so that another Judge can determine any further interim or final parenting orders.
(c)Costs.
Care of Children Act 2004
[41] The present application must be considered against the Care of Children Act 2004 (the Act). The fundamental principle governing all decision making under the Act is that the welfare and best interests of a child are paramount.11 To that end, the Court must take into account the principle that decisions affecting a child should be made and implemented within a time frame that is appropriate to the child’s sense of time12 and the principles set out in s 5:13
5 Principles relating to child’s welfare and best interests
The principles relating to a child’s welfare and best interests are that—
(a)a child’s safety must be protected and, in particular, a child must be protected from all forms of violence (as defined in sections 9(2), 10, and 11 of the Family Violence Act 2018) from all persons, including members of the child’s family, family group, whānau, hapū, and iwi:
(b)a child’s care, development, and upbringing should be primarily the responsibility of his or her parents and guardians:
11 Care of Children Act 2004, s 4.
12 Section 4(2)(a)(i).
13 Section 4(2)(a)(ii).
(c)a child’s care, development, and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents, guardians, and any other person having a role in his or her care under a parenting or guardianship order:
(d)a child should have continuity in his or her care, development, and upbringing:
(e)a child should continue to have a relationship with both of his or her parents, and that a child’s relationship with his or her family group, whānau, hapū, or iwi should be preserved and strengthened:
(f)a child’s identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened:
(g)a child must be given reasonable opportunities to participate in any decision affecting them.
[42] Section 5A of the Act requires that family violence be taken into account if an application is made for a parenting order or variation of a parenting order and a temporary or final protection order under s 79 of the Family Violence Act 2018 is, or has been, in force against one or more of the parties (as is the case in the present matter).
First cause of action—Did the Judge fail to exercise his statutory power of decision?
[43] Counsel for Mr Miller, Ms Morris, submits that Judge Greig failed to exercise his statutory power of decision by failing to hear or make a decision on Mr Miller’s application to discharge the suspension of care and revert to the previous shared care arrangement for Harriet.
[44] Ms Morris says that the February hearing was specifically convened to address the safety concerns arising out of Ms Barclay’s without notice application, which then led to the suspension of Mr Miller’s care of Harriet, and that the Judge refused to hear evidence about that. She says the hearing was set down by the Judge, knowing that no s 133 report would be available. Ms Morris emphasises that the parties were present and hearing time was available. She says that at this point, five months had passed since the application without notice had been granted, the passage of time raising concerns both about a decision being made within a child’s sense of time and the
potential damage to Harriet’s relationship with Mr Miller, the longstanding previous care arrangements having been disturbed.
[45] I explored with Ms Morris that in the alternative to her position that the Judge refused to make a decision (that is, failed to exercise his statutory power), it could be said that he did exercise his statutory power, either through making a decision to decline to grant Mr Miller’s application (this being the characterisation Ms Woodcock advanced), or making a decision to continue the Interim Order and adjourn Mr Miller’s application to a further hearing.
[46] Ms Morris accepted that a neat categorisation of what occurred may be difficult (and acknowledged that she had been unable to find authorities in relation to framing a ground for review as Mr Miller has done, in comparable circumstances). Ms Morris nonetheless maintained her position that the Judge’s failure to make “safety findings” following the hearing of evidence meant the Judge failed to consider or exercise his statutory powers, including to assess how the Interim Order might be varied, for example by ordering supervised care if he had decided some safety concerns remained.14
[47] Ms Woodcock’s position is that the Judge exercised his statutory power of decision by declining Mr Miller’s request to vary the Interim Order and reinstate contact. She says that it is plain that the principal basis for the Judge’s decision was because Harriet was very clear she did not want to see Mr Miller and there was no psychological evidence. Ms Woodcock also says that the parties were heard in relation to the issues concerning Harriet. She emphasises the statutory requirement to take into account Harriet’s views and that it is a matter for the Court’s discretion as to the weight it gives such views.15
[48] I have some difficulty in characterising what was happening at the February hearing as a failure by the Judge to exercise a statutory power. Rather, I consider it can
14 Section 59 of the Care of Children Act permits an order for supervised contact to be made where a Family Court Judge is making or varying a parenting order determining a person’s contact with a child and the Judge is not satisfied that the child will be safe with that person. The Act does not itself refer to “safety findings”.
15 Care of Children Act, s 6; C v S [2006] 3 NZLR 420, [2006] NZFLR 745 (HC) at [31(h)].
be said that Judge Greig exercised his statutory powers in continuing the Interim Order and adjourning Mr Miller’s application to a further hearing. The Judge did not fail to make a decision at all, the Judge simply refused to make the decision Mr Miller wanted. Therefore, the first cause of action as pleaded cannot succeed.
[49] However, even if I was to accept that the Judge’s actions could be characterised as a failure to exercise a statutory power, that on its own would not be enough to allow this cause of action to succeed. A failure to exercise a statutory power will only succeed as a ground for review where the applicant can show there was a duty to act, that no action was taken and that the reasons for not taking action involved illegality.16
[50] The focus of Ms Morris’s submissions was on establishing that no action was taken by the Judge. The question of whether a duty to act exists was not addressed in submissions, although Ms Morris did acknowledge at the hearing that it may not be appropriate to cast the Judge as having a duty to act in the present case. In circumstances where this issue was not fully argued, I do not reach a conclusion on the matter. I prefer to proceed at this stage on the basis that, while it was also not expressly articulated that the reasons for the Judge’s failure to exercise his statutory power involved illegality, it is nonetheless clear that a breach of a right guaranteed by the New Zealand Bill of Rights Act 1990 (such as the right to natural justice) would amount to illegality. Matters of this kind are pleaded in Mr Miller’s other causes of action.
[51] As I go on to find that the factual matters alleged in the remaining causes of action are not established (and therefore no illegality is established), whether a duty to act exists in terms of the first cause of action is not material. Either I am correct that the appropriate way to characterise the Judge’s actions is that he did exercise his statutory power through continuing the Interim Order and adjourning the hearing, or the third element of a ground for review asserting a failure to exercise a statutory power is not made out.
[52]Thus, I conclude that the first cause of action cannot succeed.
16 Graham Taylor Judicial Review A New Zealand Perspective (4th ed, LexisNexis, Wellington, 2018) at 5.11.
Is judicial review available to Mr Miller?
[53] Before I turn to the remaining causes of action, I address the issue as to whether judicial review is available to Mr Miller, given the limited appeal rights in relation to interlocutory or interim orders under the Act and the approach taken in caselaw. Ms Morris says that Mr Miller has not pursued an appeal because as the Judge refused to exercise his statutory powers to hear the application or make a decision, there is no decision with findings of fact or law that were appealable. Ms Morris did not address the relationship between appeal rights under the Act and the availability of judicial review in her submissions.
[54] The starting point is that statutory powers of decision-making are exercised by Judges of the Family Court and accordingly they are subject to judicial review. Despite this, New Zealand courts are reluctant to entertain judicial review when the underlying decision is subject to a statutory appellate procedure that is more appropriate than judicial review.17
[55]Section 143 of the Act governs appeals to the High Court. It relevantly states:
(1)This subsection applies to a decision of the Family Court or District Court, in proceedings under this Act (other than criminal proceedings), to—
(a)make or refuse to make an order (other than an interlocutory or interim order); or (b) dismiss the proceedings; or
(c) otherwise finally determine the proceedings.
(2)A party to proceedings in which there is made a decision to which subsection (1) applies, or a child to whom those proceedings relate, may appeal to the High Court against the decision. However, if the proceedings are under section 46C or 46R, the party or child may appeal only with the leave of the High Court
(3)A party to proceedings under this Act in the Family Court or District Court in which an interlocutory or interim order is made, or a child to whom those proceedings relate, may, with the leave of the Family Court or District Court (as the case requires), appeal to the High Court against the order.
17 Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158, [2012] 2 NZLR 153 at [15], per Elias CJ and McGrath J (footnotes omitted).
[56] Thus, where the subject of the appeal is an interlocutory or interim order made under the Act, there is an additional constraint of a leave requirement. It is well- recognised that this aligns with Parliament’s policy objectives in restricting appeal rights in such cases, to prevent proceedings in the Family Court becoming unduly protracted and to recognise the Family Court as a specialist Court.18 The restrictions on appeal rights also reflect the purpose of the Act, which is to promote children’s welfare and best interests, and facilitate their development, by helping to ensure that appropriate arrangements are in place for their guardianship and care as well as the expeditious and final determination of applications concerning care arrangements between parents.19
[57] Given the clear intention of Parliament in limiting appeal rights relating to interim orders, judicial review in this context is limited. Where a party has no right of appeal, the courts are very reluctant to entertain judicial review unless there is a clear- cut case of fundamental error, which can include apparent bias and predetermination.20 Where a party has a right of appeal, an application for judicial review can amount to an abuse of process.21
[58] In the present case, it is unclear whether Mr Miller would have a right of appeal. If continuing the Interim Order amounts to “mak[ing] an order” in terms of s 143 of the Act, Mr Miller would have a right of appeal subject to a Family Court Judge granting leave. If it does not, Mr Miller would have no right of appeal.22
[59] Whether or not Mr Miller has a right of appeal is not determinative in this case. The alleged refusal to exercise a statutory power relates to an interim order made by the Family Court under the Act. As such, I must bear in mind the clear policy objectives that spurred Parliament to circumscribe appeal rights in this context. Mr Miller alleges fundamental error: breach of natural justice, apparent bias and pre-
18 Malone v Auckland Family Court & Malone [2014] NZHC 1290 at [28], citing T v E FC Auckland FAM-2007-004-2481, 2 July 2008 at [4].
19 Fox v Fox [2022] NZHC 2834 at [9]–[11].
20 Newton v Family Court at Auckland [2022] NZCA 207, [2022] 3 NZLR 846 at [6], [196]–[198]
[200] and [206], citing Malone v Auckland Family Court & Malone, above n 18.
21 See Larsen v Family Court & Coney [2023] NZHC 395; and Fox v Fox, above n 19.
22 Roche v Jansen [2017] NZHC 207 at [48]–[55], endorsing the approach taken by Duffy J in
Gordon v Campbell [2015] NZHC 1264, [2015] NZFLR 841.
determination. These allegations must be addressed. However, relief will only be granted where such relief is consistent with the scheme of the legislation.
Remaining causes of action—breach of natural justice, bias and pre- determination
[60]It is convenient to deal with the remaining causes of action together.
[61] Ms Morris submits that the Judge’s decision not to consider the without notice application at the February hearing was in breach of natural justice and gave the appearance of an unfair hearing. Ms Morris says that the Judge did not give Mr Miller an opportunity to be heard, the Judge did not approach the hearing with an open mind, the Judge relied on earlier credibility findings about Mr Miller, and through these matters demonstrated apparent bias and predetermination.
[62] I address what is required to establish each of a breach of natural justice, bias and pre-determination before turning to the factual circumstances in this case.
What does natural justice generally require?
[63] The right to natural justice is enshrined in the New Zealand Bill of Rights Act.23 Natural justice and fairness are the same in this context.24 As Graham Taylor has put it:25
The resulting pattern that emerges is that where the Court is concerned with procedural requirements, judges have not distinguished fairness from natural justice but have used “fairness” as a shorthand for the legally required level of process, or have simply used “fairness” as a substitute for “natural justice” to describe what process is required, or both together.
[64] What natural justice demands will depend on the relevant circumstances of each case.26 However, it will usually require that the parties to a matter to have an
23 New Zealand Bill of Rights Act 1990, s 27(1).
24 Furnell v Whangarei High Schools Board [1973] 2 NZLR 705, [1973] 2 WLR 92 at 718.
25 Graham Taylor, above n 16, at 13.12, citing, amongst other authorities, Isak v Refugee Status Appeals Authority [2010] NZAR 535.
26 P v Department of Child Youth and Family Services [2001] NZFLR 721 at [133].
opportunity to be heard. Decision makers must afford a fair opportunity to parties to correct or contradict any statement prejudicial to their view.27
The interaction between natural justice and without notice applications
[65] Without notice applications are a special limited exception to the principle that natural justice requires those affected to be heard. As such, the circumstances in which a without notice application may be granted is circumscribed. In the family context, rr 24 and 416H of the Family Court Rules 2002 allow applications without notice to be made if the Act specifically permits it or if the delay caused by making the application on notice would or might entail serious injury or undue hardship or risk to the personal safety of the applicant or any child of the applicant’s family, or both.
[66] In Martin v Ryan, Fisher J made the following observations about without notice interim injunctions:28
Without suggesting that they are inflexible or exhaustive there would normally seem to be five requirements before an ex parte order is justified:
(i)Clear case on the merits;
(ii)Irreparable injury if the application proceeds on notice;
(iii)No delay by the applicant;
(iv)Effect of order will be only brief and provisional;
(v)Strong ground overriding conventional requirements of natural justice.
[67] Fisher J went on to say that these principles apply in the family context, before saying:29
Ormond LJ said in Ansah at p 143 that:
“If an order is to be made ex parte, it must be strictly limited in time if the risk of causing serious injustice is to be avoided.
…
27 Board of Education v Rice [1911] AC 179 (HL) at 182, per Lord Loreburn.
28 Martin v Ryan [1990] 2 NZLR 209, (1990) 6 FRNZ 187 at 226.
29 At 227, citing Ansah v Ansah [1977] Fam 138 (UK).
Above all, it should not be overlooked that an order made ex parte represents a fundamental denial of that natural justice upon which our whole system of civil litigation normally rests.
[68] Clearly then, natural justice will ordinarily demand that where a without notice application is made the party affected should have the opportunity to be heard on the matter as soon as possible. This principle is reflected in s 49A of the Act, under which a parent has a right to give notice that they seek to be heard where an interim parenting order is made that means the parent does not have day-to-day care for or contact with their child. The Court must assign a hearing date as soon as practicable and not more than 42 days after the notice is received, unless there are special circumstances. At the hearing, a Family Court judge may replace the interim order with either a further interim order or a final parenting order.
[69] Ms Woodcock raised the issue that s 49A does not appear to apply to Mr Miller, however, because he is not a “parent” under the Act. Not only is Mr Miller not a parent of Harriet, but he is also not a guardian. Mr Miller was in a de facto relationship with Ms Barclay, but Ms Barclay is Harriet’s guardian, not parent. Parenting orders in general may only be sought by a parent, guardian, spouse or partner of a parent of the child or any other person who is granted leave.30 The term “spouse or partner of a parent” means:31
… a person who is not the child’s parent but—
(a) who is or has been married to, or in a civil union or de facto relationship with, a parent of the child; and
(b) who shares responsibility for the child’s day-to-day care with the parent.
Further, it does not seem that Mr Miller has sought or been granted leave, as contemplated by the Act.
[70] This appears to make it problematic for Mr Miller to explicitly rely on s 49A. However, Mr Miller has had a parental role in Harriet’s life since she was very young. He has made applications for parenting orders in the past and interim parenting orders
30 Care of Children Act, s 47(1).
31 Section 8.
have been made under s 49 of the Act, and no issue as to his status seems to have been taken. Nor has any issue been taken with the applications made by each of Ms Barclay and Mr Miller under s 56 of the Act to vary parenting orders. Ms Morris submits that in such circumstances, it must be implied that leave from the Family Court has been granted under s 47 of the Act. Without deciding this point, I consider that s 49A strongly supports the view that a without notice interim order preventing access to a child with whom someone would usually have contact in a parental role raises natural justice concerns that would ordinarily require the Court make speedy provision for that party to be heard.
Apparent bias and pre-determination
[71]The Supreme Court in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd
held that the test for apparent bias for judges in New Zealand is whether:32
…a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.
[72]This test is an objective one with two stages:33
(a)First, the party alleging bias must identify the circumstances that are said might lead a judge to decide a case other than on its legal and factual merits.
(b)Second, this party must be able to clearly articulate the logical connection between those circumstances and whether they establish a reasonable apprehension of bias. Regarding this second step, it will not be enough that the circumstances create “a vague sense of unease or disquiet”, rather the party alleging bias must firmly establish that is the case.34 They must do so in an analytical way, rather than as a matter of general impression or presumption.35
32 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [3].
33 At [4] and [20].
34 At [94].
35 At [42].
[73] The fair-minded lay observer is taken to be reasonably informed about the workings of our judicial system, as well as about the nature of the issues in the case and about the facts pertaining to the situation which is said to give rise to an appearance of bias.36 The fair-minded lay observer is also taken to understand matters relating to the conduct of judges. This includes that the judge is expected to be independent in decision-making and has taken the judicial oath, the judge has an obligation to sit on any case allocated to the judge unless grounds for disqualification exist, and that the judicial system functions on the basis of deciding between litigants irrespective of the merits or demerits of counsel.37
[74] Unlike apparent bias, which concerns the perception that a decision-maker was not impartial, pre-determination arises where a decision-maker has approached a decision with a “closed mind”.38 Whether or not pre-determination is established on the facts must be decided by reference to the particular legislative and factual setting.39
[75] In Newton v Family Court at Auckland, the Court of Appeal dealt with an application for judicial review of a decision by a Judge to order a psychological report under s 133 of the Act. After discussing the amenability of such a decision to judicial review, the Court said:
[11] Review of a s 133 order on the grounds of pre-determination is also, in principle, available. But care needs to be taken to distinguish between prompt decision-making on a frequently encountered preliminary issue by a well-prepared judge with substantial experience of such matters, and a decision made by a judge with a closed mind that is made up in advance and is not open to persuasion. Only the latter amounts to pre-determination.
[76] When it is claimed that a judicial decision maker has pre-determined a decision, the appropriate test is that of the fair-minded lay observer.40 The fair-minded lay observer is presumed to be intelligent and to view matters objectively, and to be reasonably informed about the justice system and the specific issues at hand.41
36 At [5].
37 At [8].
38 CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 at 179; Save Chamberlain Park Incorporated v Auckland Council [2018] NZHC 1462 at [180].
39 Save Chamberlain Park Incorporated v Auckland Council, above n 38, at [184].
40 Newton v Family Court at Auckland, above n 20, at [254], citing Saxmere Co Ltd v Wool Board Disestablishment Co Ltd, above n 32.
41 At [255], citing Saxmere Co Ltd v Wool Board Disestablishment Co Ltd, above n 32.
Analysis
[77] I do not accept that apparent bias, pre-determination or a breach of Mr Miller’s rights to natural justice is established on the facts. I conclude that given the matters discussed below, no fundamental error exists in this matter, and the second, third and fourth causes of action cannot succeed. Critically,
(a)Harriet’s welfare and best interests (including her safety) are to be the paramount consideration and they were served by the Judge’s decision;
(b)the Judge reasonably formed the opinion he required a s 133 report before considering Mr Miller’s application to vary the parenting order given the deeply acrimonious and longstanding conflict between Mr Miller and Ms Barclay, the existence of previous findings that Mr Miller has emotionally abused Harriet, and Harriet’s own views;
(c)this necessarily delayed the hearing of Mr Miller’s application but did not amount to pre-determination by the Judge of any matter relating to Mr Miller, nor give rise to apparent bias;
(d)no decision has yet made on Mr Miller’s application; and
(e)Mr Miller will be heard on the matter shortly.
[78] I consider that the Judge continued the Interim Order and adjourned the hearing because Harriet had been very clear in the meeting with him that she did not want to see Mr Miller and, in circumstances of clearly conflicting evidence from Mr Miller and Ms Barclay in the context of the long background of acrimony between them, he wished to have psychological evidence available to him to inform his decision about Mr Miller’s application. That this was his reasoning is reinforced by him saying at the end of the Judgment that he was expecting to receive the s 133 report in late March and that a conference with him was then to be arranged, with counsel to file memoranda in advance.
[79] While I understand Mr Miller’s frustration (and possibly that of his counsel) because of his expectations for the February hearing, the broader context must be recognised. Several applications and responses were before the Judge in relation to matters affecting the children of Mr Miller and Ms Barclay. It does not seem that s 49A of the Act were expressly raised in these. The Judge was responsible for case- managing all matters relating to those children, and as highlighted earlier, there are many such matters. While he did know in advance the s 133 report would not be available, what the nature of his discussion with Harriet would be was not known until it occurred, immediately before the February hearing.
[80] There are important factual features of the Judge’s decision that lead me to the conclusion that no fundamental error has occurred.
[81] First, the Judge formed the view that he required a psychological report to assess whether Harriet would be safe with Mr Miller, and she should have contact with him:
[137] … In my judgement it would be reckless to assert, on the basis of Mr [Miller’s] word, that [Harriet] was: (a) entirely safe in his care; and (b) that there was no risk in forcing an unwilling child to have contact.
[138] This is particularly so given the findings that I have made against Mr [Miller] in the past. I cannot simply dismiss the suggestion that he has ill- treated [Harriet] and/or that [Harriet] is reacting to witnessing her mother being ill-treated.
[82] Ms Morris has raised several arguments to the effect that this view was unreasonable. I disagree. In sum, it was reasonable because:
(a)there are sound reasons for concern that Mr Miller has emotionally abused Harriet, after such abuse was found by a Child and Family Assessment completed after Ms Barclay’s without notice application and after this was noted as a concern by professionals in Oranga Tamariki records; and
(b)Harriet has consistently expressed that she does not wish to have contact with Mr Miller, including by telling the lawyer for the child the same thing as she had told Ms Barclay.
[83] I now turn to Ms Morris’s submissions on this point. Ms Morris submits that Harriet’s emotional response before the Judge could be attributable to emotions other than not wishing to see him. While this is true (and was recognised by the Judge), the Judge’s inference that Harriet was very resistant to seeing her father at all was reasonable: after asking Harriet how she felt about seeing Mr Miller, she broke down in tears and said, “I don’t want to go there ever again” before describing how Mr Miller treated her differently than her siblings.
[84] Ms Morris also submits that, regardless, the Judge could have made “safety findings” on the information before him, without the need for a psychological report. The Court of Appeal’s observations in Newton are relevant here:
[262] It is also unsurprising that a very experienced Family Court judge who was familiar with the history of conflict in relation to these children … might consider that he would be assisted by an up-to-date psychological report.
[85] Ms Morris submits, finally, that the fact there was no s 133 report available at the hearing does not mean the Judge should not or cannot make factual findings.42 I accept that not having a s 133 report from a psychologist (as has been ordered in the present case) does not in principle prevent the making of factual findings by a judge.43 But acknowledging generally that a s 133 report is not always required to deal with parenting matters is not the same as concluding that the Judge was required to make “safety findings” at the February hearing, as Ms Morris seemed to suggest. The Judge had earlier decided that a s 133 report was necessary before he would determine Mr Miller’s application to vary the Interim Order (and indeed he sought the report in relation to all the children).
[86] The Judge clearly concluded that he would be assisted by a psychologist’s opinions where otherwise he would only have available Mr Miller’s views, on one hand, and Ms Barclay’s and Harriet’s views, on the other, contrasting only with the view of the social worker, who did not expressly make any findings or recommendations about Harriet’s safety with Mr Miller in her written report. In circumstances where there are clear concerns for Harriet’s safety that Mr Miller could
42 See for example, K v K [2021] NZHC 522.
43 Section 133 of the Care of Children Act provides in some detail as to when the power to obtain such a report should be exercised.
not have alone ameliorated (given Mr Miller’s views are in conflict with those of both Harriet and Ms Barclay), the Judge’s view that it would have been irresponsible to rescind or vary the order as Mr Miller wished without further information was reasonable. This is particularly so given the history of allegations against Mr Miller, including findings that he had emotionally abused Harriet. It was open to the Judge to reach a decision that a s 133 report was needed. In this context, while Mr Miller did not agree with this decision, this does not amount to him not being heard such that there is a breach of natural justice.
[87] The second important factual feature is that, as I have discussed above, the Judge did not refuse to hear the matter or make findings against Mr Miller on any final basis: he adjourned the hearing for only as long was needed for the s 133 report to be ready. The Judge even offered to give up his personal time to hear the matter if usual Court time was not available for a long time. As I have indicated, a hearing is currently scheduled for next week.
[88] Mr Miller has said that the Judge’s consideration about his previous findings on Mr Miller’s credibility demonstrate apparent bias. However, a credibility assessment is not bias or pre-determination on this specific issue, but the reality of case managing a complex matter for a significant period of time. Where a Family Court Judge has previously made findings that a parent figure has emotionally abused a child, they cannot simply dismiss that finding without something more. Had the Judge made a final determination in the present matter on the basis of these previous findings without hearing anything further on the matter, there would be breaches of Mr Miller’s rights to natural justice. However, the Judge has instead adjourned the hearing, and has given every indication that he will ultimately make a finding that is determined on the information put before him:
[135] Having met with [Harriet] I formed the clear view that I was not in a position to determine the issue on the basis of the evidence in front of me. If [Harriet] has been illtreated by Mr [Miller], then contact remains out of the question. Having heard all of the evidence I also cannot possibly dismiss the suggestion that [Harriet] is reflecting views she believes adults want to hear. That is a dynamic well-known to any judge sitting in the Family Court. That could easily explain the distress that she exhibited; that she does very much want to see the man she regards as her father but is being prevented from doing so.
…
[139] Both scenarios are equally possible at present. Even if [Harriet] is not being illtreated but is reflecting what she thinks the adults around her wish to say, then it still needs specialist advice on how to reintroduce Mr [Miller] into [Harriet’s] life. Ms [Barclay] has on occasion acted violently towards Mr [Miller]. Could [Harriet] be reacting to that? For me to simply direct that there will be contact between Mr [Miller] and [Harriet] in terms of the March 2023 order would be an act of recklessness.
[89] In this context, I observe that the Judge frequently commented on Ms Barclay’s shortcomings as well. It is also noteworthy that the Judge, in the same February hearing, made findings for Mr Miller in relation to his young son’s vaccinations, thus further mitigating against the suggestion of apparent bias against Mr Miller.
[90] I would add that the Judge was dealing with four matters in a short stretch of time. Ms Morris submits that by refusing to hear any evidence on Harriet’s safety at the hearing, the Judge had pre-determined the issue. However, given the Judge only adjourned the matter, his decision to prioritise the other matters that required attention and would otherwise go unaddressed can be understood as a necessary efficiency. The Judge said in the hearing:
Judge Greig: It follows entirely logically. We’ve got a three hour hearing. I don’t have any objective evidence except from the social worker maybe and given that this is a matter that I’m not going to rule on, or not going to change the order today, it would in fact be illogical for Ms Stannard to chew up her 40 minutes with unnecessary cross-examination and it is unnecessary.
…
Judge Greig: And I’m not prejudging that issue… I am simply saying that I’m not going to change the order regarding [Harriet] at the moment.
[91]The observations of the Court of Appeal in Newton are again relevant:44
We also remind ourselves that “the rule of disqualification by reason of pre- determination must be applied with the utmost caution”. It is important not to confuse experience and efficiency with pre-determination.
[92] In all the circumstances, including those on the day of the February hearing, the decision to continue the Interim Order and adjourn Mr Miller’s application was
44 Newton v Family Court at Auckland, above n 20, at [258], citing CREEDNZ Inc v Governor- General, above n 38, at 193.
open to the Judge. Given this decision, it was also open to him not to allow cross- examination in relation to the factual matters relating to whether Mr Miller should have contact with Harriet and therefore not progress to make “safety findings” or any order for supervised contact. The Judge did not, in these circumstances, breach natural justice or display bias or pre-determination.
[93]I now address a few final submissions under this head on behalf of Mr Miller.
[94] Ms Morris relies on the mandatory language of s 5(a) of the Act, which states that “a child’s safety must be protected” and “a child must be protected from all forms of violence … from all persons” to submit that the Judge should have made “safety findings “at the February hearing even if this did not result in any variation to the Interim Order. She argues that making such findings would have then permitted the Judge to make an order for supervised contact between Mr Miller and Harriet (assuming the worst case scenario of a conclusion by the Judge that unsupervised contact was not appropriate) and that this was important given the passage of time since the Interim Order was made.
[95] Ms Woodcock submits, however, that while it was open to the Judge to consider making an order for supervised contact under s 59 of the Act, this is a discretionary provision, and it is implicit in the Judgment that the Judge did not consider such an order was appropriate. I agree, and once again observe that this was a decision open to the Judge to make.
[96] Finally, I acknowledge Mr Miller’s frustration that considerable time has passed since the Interim Order was made and that resolving the underlying issues is important both because of the principle that decisions affecting a child should be made and implemented within a time frame that is appropriate to the child’s sense of time and the potential effect on the relationship between Mr Miller and Harriet. It is most unfortunate that close to nine months will have elapsed between the making of the Interim Order and the Family Court hearing to take place next week (although only five months since the events at the heart of Mr Miller’s application). This is not consistent with the policy underlying s 49A of the Act (although Ms Woodcock submits there are no mandatory time limits in the Act or statutory sanctions against
delay). The extent and complexity of the matters at issue between Mr Miller and Ms Barclay as to the care and contact of all their children and the inevitable resourcing constraints under which the Family Court operates (including the availability of s 133 reports) go some way to explaining the situation. Ultimately, the fundamental principle governing all decision making under the Act is that the welfare and best interests of a child are paramount. Although not a matter for substantive consideration in the present application, in my view, the Judgment indicates a clear focus on Harriet’s welfare and best interests.
[97] I therefore conclude that the causes of action relating to natural justice, pre- determination and bias are not established and should be dismissed on their merits. As discussed earlier, this also means that the first cause of action cannot succeed.
Relief
[98] Having concluded that none of the pleaded grounds of judicial review are made out I do not need to address relief. For completeness, however, I record that had I come to a different decision, I expect that I would have refused relief, as a matter of discretion, for two reasons.
[99] First, a two day hearing is set down next week to hear Mr Miller’s application to vary the Interim Order. Thus, no order for a priority fixture to hear the matter is necessary.
[100] Second, an order is sought that I recuse Judge Greig so that another judge can deal with the matter. The Judge’s recusal is a matter to be dealt with under the District Court Recusal Guidelines (made pursuant s 217 of the District Court Act 2016) in accordance with the guiding principle and two-step test set out there. A recusal decision is a decision to be made by an individual judge who is being asked to recuse themselves. Those Guidelines contemplate that an application is made, determined in open court and reasons given in the usual way. It does not appear that those steps have been taken. Submissions were not advanced as to the legal basis on which I could recuse the Judge.45
45 See Dunstan v Wellington District Court Judge Harrop [2024] NZHC 760 at [18]–[22].
Result
[101]The application for judicial review is dismissed.
Costs
[102] In the circumstances, my preliminary view is that costs should lie where they fall. If any party wishes to seek costs, they must file a memorandum of no more than five pages within 10 working days. I will determine costs on the papers.
McQueen J
Solicitors:
Morris, Auckland for Applicant
Crown Law, Wellington for First Respondent
Govett Quilliam, New Plymouth for Second Respondent
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