Newton v Leckie

[2023] NZHC 3550

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

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-517

[2023] NZHC 3550

BETWEEN

NEWTON

Appellant

AND

LECKIE

Respondent

Hearing:	On the papers
Appearances:	Appellant self-represented R A Allison for Respondent
Judgment:	7 December 2023

JUDGMENT OF EATON J

(application for leave to appeal)

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

NEWTON v LECKIE [2023] NZHC 3550 [7 December 2023]

Introduction

[1]    On 14 September 2023, Judge Duggan, sitting in the Family Court at Christchurch, made a guardianship order under s 46R of the Care of Children Act 2004 (COCA) that the  child  of  the  parties  be  immunised  in  accordance  with  Ministry of Health guidelines.1

[2]    On 20 September 2023, Mr Newton filed a notice of appeal against that decision. He was unaware that s 143(2) of COCA provides that an order under s 46R requires leave to appeal. Mr Newton filed an affidavit in support of the appeal.

[3]    Ms  Allison,  for  Ms  Leckie,  was  served  with  the  notice  of  appeal  on  12 October 2023 and, the following day, filed a memorandum highlighting that leave to appeal was required. The memorandum observed that Mr Newton was out of time to seek leave to appeal but responsibly confirmed the respondent would abide the decision of the Court if an application was made to extend the time for filing an application for leave.

[4]    On 16 October 2023, Dunningham J made directions timetabling the filing and service of an application for leave to appeal and for opposition to that application. Dunningham J directed that the appellant’s affidavit of 11 October be removed from the Court file and indicated that, upon receipt of the application and opposition, the application for leave would be determined on the papers.

[5]    On 30 October 2023, the appellant filed an interlocutory application for leave to appeal out of time together with a further affidavit. That affidavit attached, among other things, submissions filed in the Family Court and the appellant’s comments in response to the decision under appeal.

[6]    On 20 November 2023, Ms Allison filed a notice of opposition to the application for leave to appeal out of time, treating that application as incorporating an application for leave. In a supporting memorandum, Ms Allison referred to the

1      Newton v Leckie [2023] NZFC 10492. The names of the parties have been anonymised pursuant to s 139 of the Care of Children Act 2004.

relevant principles the Court will apply in considering an application for leave to appeal an order made under s 46R of COCA.

Extension of time

[7]    Mr Newton is self-represented. He had filed a notice of appeal within time. In those circumstances, and absent opposition from the respondent, I grant leave to file the application for leave to appeal out of time. I will treat the application for leave to appeal out of time as including an application for leave to appeal.

Grounds for leave to appeal

[8]    The grounds advanced for leave mirror the grounds advanced in support of the substantive appeal. Mr Newton has not engaged with the legal principles that apply to a leave application.

[9]The grounds for seeking leave to appeal, as best as I can discern them are:

(a)false statements and factual errors having been made by both counsel for the respondent and lawyer for the child in submissions advanced before the Family Court, and in the decision of the Family Court Judge;

(b)an allegation of bias said to be demonstrated by the Judge disregarding material advanced by the appellant and accepting submissions advanced on behalf of the respondent and lawyer for the child;

(c)a failure by the Judge to acknowledge that evidence advanced by the appellant was “unique” to the parties’ child; and

(d)a failure by the Judge to have regard to Ministry of Health data specific to the child.

The judgment under appeal

[10]   The Judge records that in May 2023, the respondent filed an application under s 46R of COCA seeking the Court’s authority to immunise the child according to

Ministry of Health immunisation guidelines. The Judge identified immunisation as a guardianship issue and, given that the child’s guardians, Mr Newton and Ms Leckie, could not agree about immunisation, determined it was appropriate for the application to have been made to resolve the dispute.

[11]   The Judge referred to an affidavit filed by Ms Leckie setting out why she considered it to be in the child’s best interests to be immunised, in particular because the child was about to commence school and that immunisation was “in line with the health recommendations”.

[12]   Mr Newton’s response included what the Judge described as evidence comprising of articles, reports, and email correspondence between the parties about immunisations, a criminal history for a company in the United States relevant to the broader topic of immunisation and an abstract on chicken pox, along with information from Medsafe about a particular vaccine, a link to an article from a New Zealand Government website as well as a list of doctors in the Nelson region. The Judge referred to Mr Newton’s evidence of a contract or agreement between himself and Ms Leckie leading to his understanding they were in agreement their child would not be immunised.

[13]   The Judge considered a report from the lawyer for child supporting the application approving immunisation. Specific reference was made to s 4 of COCA and the primary consideration being the child’s welfare and best interests. The Judge observed that of particular relevance was the principle in s 5(a) of the Act recognising the obligation to protect the child’s safety.

[14]   The Judge then referred to a number of recent decisions of the Family Court considering whether immunisation was in the best interests of a child. The Judge observed that the courts are generally reluctant to direct that immunisation should not occur absent specific medical evidence identifying contraindications for the child the subject of the application. The authorities where vaccination had been authorised generally recognised the best evidence before the court is that children are protected from disease through the Ministry of Health recommended immunisation schedule, and if a parent or guardian is opposed to vaccination, the party opposing would need

to satisfy the court with credible evidence that the benefits of immunisation are outweighed by the specific risk to the child.

[15]   The Judge described the material provided by Mr Newton as being not specific to the child and said that “some has, since publication, been discredited”.2 The significant finding made by the Judge was that there was no medical evidence before the Court that specifically considered any risk to the child in being immunised. The Judge rejected Mr Newton’s submission that Ms Leckie shouldered the burden of proving the benefits of immunisation outweigh the risks to the child of contracting the diseases she would be immunised against.

[16]   The Judge considered that a decision about the child should not be a dissertation about the positives and negatives of immunisation generally. She described the Ministry of Health guidelines as based on a substantial body of medical evidence and concluded that immunisation was in the child’s best interests in accordance with the Ministry of Health immunisation schedule. The Judge referred to an obligation to protect the child’s safety and, in particular, to protect the child “from the diseases that are guarded against by the immunisations recommended by the Ministry of Health”.3

Leave to appeal

[17]   The relevant principles that will determine an application for leave have been helpfully identified by Toogood J in SFB v JEBH:4

(a)In allowing appeals of decisions under s 46R of the Act to proceed only with the leave of the Court, Parliament must have intended that some, but not all, decisions under the section that resolve disputes between guardians should be subject to appellate review. By imposing the leave requirement, Parliament understood that there was a need for finality and that not all challenges would warrant granting leave.

(b)However, because there is no further right of appeal against a decision under s 46R decision, beyond an appeal in this Court, the Court will generally be more willing to grant leave.

2 At [22].

3 At [13].

4      SFB v JEBH [2015] NZHC 2897 at [8(a)-(f)] (footnotes omitted).

(c)Where the decision reached by the Family Court has long term implications for the welfare of a child, leave will be more readily granted.

(d)A decision whether to grant leave must be based on the first and paramount consideration of the welfare and best interests of the child. In general, bearing that consideration in mind, the Court will need to be satisfied that the issue is sufficiently important to be subject to an appeal notwithstanding: (i) the nature of the decision; (ii) the need for stability to be brought to the life of the child and (iii) the inevitable cost and delay inherent in appellate review.

(e)Leave will more readily be granted where there is a discernible serious issue to be determined. Accordingly, disputes that involve “important matters affecting the child” are more likely to justify granting leave. Where and how the child is to be educated is one such matter.

(f)If the party seeking leave identifies a seriously arguable material error of law or fact, then it is likely that leave will be granted.

Submissions for respondent

[18]   Ms Allison submits that the Family Court, as a specialist court, was in the best position to analyse the evidence and apply the law to the dispute. She submits the appellant has not identified a seriously arguable material error of law or fact, and the proposed grounds have little prospect of success on appeal. She argues most, if not all, of the documents advanced by the appellant in the Family Court were either inadmissible or unreliable. She submits the Judge reviewed Mr Newton’s exhibits and the studies he produced in evidence but rightly determined that material was not specific to the child.

[19]   Counsel submits there is no basis for the allegation of bias. She observes that the child received her Men B and MMR vaccinations on 18 October 2023, before a stay was granted on 19 October. Ms Allison submits that the appeal, although not entirely moot, is now essentially pointless. She submits it is in the child’s best interests and welfare that the leave application be declined. To do so would be consistent with the child’s right to stability and finality.

Analysis

[20]   I acknowledge the paramount consideration is the welfare and best interests of the child. Those interests are impacted by the nature of the issue disputed by the guardians.

[21]    I acknowledge that the issue of immunisation is a matter of real significance to Mr Newton. I have no doubt he firmly and genuinely believes that immunisation is not in the best interests of the child. Mr Newton’s concern about and interest in this issue is evidenced by his personal, lengthy report that collates other reports and data in support of his argument that immunisation was not in the best interests of the child.

[22]   I also acknowledge that Ms Leckie’s position as regards immunisation appears to have shifted. The Judge referred to a “contract or agreement” between the parties that was in place before Ms Leckie fell pregnant and continued for “years after [the child’s] birth”, recording their joint position as regards immunisation of the child.  Mr Newton’s position has been consistent. The Judge did not discuss this agreement any further, but I proceed on the understanding the issue of immunisation was of particular relevance and importance to both parties and the subject of discussion and agreement between them. People are apt to change their minds on issues, and this casts no aspersions on Ms Leckie.

[23]   On the facts particular to this case, I therefore accept this issue was, and remains, of real importance to the parties. As such, in my view it is an issue that impacts the overall welfare of the child beyond the direct medical impacts that were the subject of dispute before the Judge. It is an issue that will likely impact the relationship between the parties, and, therefore, the child.

[24]   I agree the grounds of appeal advanced do not appear to be strong. I am not satisfied there is any merit in the proposed grounds alleging false statements, factual errors and bias. It is difficult to discern the merits of the balance of the grounds. The reason for that  is  two-fold.  First,  the  volume  and  complexity  of  the  material  Mr Newton has filed. Second, the economic manner in which the Judge dealt with that material.

[25]   A critical finding of the Judge was that Mr Newton had failed to offer any evidence specific to the risks posed to the child if immunised. The Judge did not refer to any evidence offered by Ms Leckie, beyond Ms Leckie’s personal opinion, that was specific to that risk. Instead, however, the Judge relied upon the general approach adopted in other cases. I acknowledge that the courts can and have taken judicial notice of the fact that the government agency responsible for the management of New Zealand’s health system recommends a certain schedule of vaccinations based on a body of evidence.5

[26]   I make no observation as to whether that approach was appropriate. On appeal, Mr Newton will argue the Judge erred in failing to have regard to his analysis of Ministry of Health data that he says was specific to his child’s age, ethnicity, living standard and location, evidencing a risk of adverse reaction to vaccinations. He would argue that data provided by the Ministry of Health was overlooked by the Judge.

[27]   Other than describing the material provided by Mr Newton as being not specific to the child or otherwise discredited, the Judge did not refer to the material relied upon by Mr Newton.

[28]   Ms Allison submits that material was either inadmissible or unreliable. She might well be right. For example, it appears the report authored by the appellant was presented as expert evidence, yet there is no reference to his qualifications or experience to produce such a report. However, there is no record of an admissibility objection or ruling. Pursuant to s 12A(4) of the Family  Court  Act  1980,  the  Family Court may receive any evidence it considers may assist it to determine the proceeding,  regardless  of  the  admissibility  of  that  evidence   under   the Evidence Act 2006. Section 170 of the Family Court Rules 2002 provides that a court may at any stage make an order determining the admissibility of evidence proposed to be tendered at the hearing. In this case there was no pretrial admissibility hearing.

[29]   The Judge did not find Mr Newton’s material to be inadmissible. It was open to the Judge to make such a ruling. Alternatively, it was necessary that the Judge consider, in particular, the material Mr Newton claimed was specific to the risk posed

5      Stone v Reader [2016] NZFC 6130.

to the child. The general finding made by the Judge as to specificity and discrediting does not permit scrutiny of the reasons for that finding. The Judge has not grappled with the particular material Mr Newton maintains is of direct relevance to the child. The basis upon which the Judge found material had been discredited is unclear.

[30]   I accept that from Mr Newton’s perspective, the issues have not been fully considered and resolved. The absence of reasoning gives rise to issues and ambiguities as to the reasonableness of the decision. To that extent, it is arguable the issue has not been resolved in a manner that promotes finality. That scenario is not in the child’s best interests.

[31]   Whilst I am not persuaded that Mr Newton has identified a seriously arguable material error of law or fact, I do consider it to be in the overall welfare and best interests of the child, and the interests of justice generally, to grant leave. I do not consider that granting leave will cause instability to the life of the child.

[32]   Accordingly, I have resolved, albeit by  a  fine  margin,  to  grant  leave  to Mr Newton to appeal against the guardianship order.

[33]   This Court will not, on the appeal, engage in a general dissertation as to the broad positives and negatives of immunisation. While the official positions of New Zealand health agencies are of weight, it is important that the particular child be assessed on an individualised basis, and the appeal will benefit from a focus on the evidence before the Family Court Judge of the specific impact to the child.

Result

[34]I grant leave to Mr Newton to appeal the decision.

[35]I will issue a separate minute to address the advancement of the appeal.

...................................................

Eaton J

Solicitors:

Duncan Cotterill, Christchurch

Copy to: Appellant

Solicitors: