P v Wellington Family Court

[2024] NZHC 2460

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-546

[2024] NZHC 2460

BETWEEN

P

Applicant

AND

WELLINGTON FAMILY COURT

First Respondent

THE REGISTRAR-GENERAL OF BIRTHS, DEATHS AND MARRIAGES

Second Respondent

C

Third Respondent

Hearing:	On the papers
Judgment:	30 August 2024

JUDGMENT OF McHERRON J

[1]    Mr P presented for filing an application for judicial review of a decision of the Family Court dated 19 July 2024 to strike out Mr P’s claim under s 133(2) of the Births, Deaths, Marriages, and Relationships Registration Act 2021 (the Act) for correction of his birth certificate.1 Mr P’s statement of claim was referred to me by the Registrar under r 5.35A of the High Court Rules 2016. That rule provides that even if a proceeding meets the formal requirements for documents in rr 5.3–5.16, the Registrar may refer the proceeding to a Judge for consideration under r 5.35B. Until

1      P v C FC Wellington FAM-2024-085-159, 19 July 2024.

P v WELLINGTON FAMILY COURT [2024] NZHC 2460 [30 August 2024]

a Judge has considered the proceeding under that rule, the Registrar may decline to sign and release the notice of proceeding and attached memorandum for the plaintiff or the applicant (as appropriate) to serve the proceeding. Rule 5.35B then gives a Judge a range of options to ensure the proceeding is disposed of in accordance with the Rules, if satisfied that the proceeding is plainly an abuse of the process of the Court.

Family Court proceeding

[2]Mr P’s application to the Family Court sought:

(a)a direction that Mr P may attend any hearing by telephone link.

(b)a determination compelling the Registrar-General of Births, Deaths, Marriages and Relationships to:

(i)require a statutory declaration from Ms C;

(ii)recommend that she takes a parentage test; and

(iii)correct the Birth Register as the Court sees fit.

[3]    Mr P’s application to attend the hearing by telephone was granted on the papers and AVL was arranged for him to appear when the matter was called before the Family Court Judge on 19 July 2024. However, Mr P had difficulty connecting to the hearing and the Family Court Judge heard the application in Mr P’s absence.

[4]    The Family Court Judge’s decision records that evidence was provided by  Ms C confirming that Mr P is her adult son and that she gave birth to him. She deposed that her son’s application and evidence in support reflects his current state of mental health. The decision records that this is not accepted by Mr P.

[5]    The Family Court Judge also recorded that the Deputy Registrar-General of Births, Deaths and Marriages and Relationships, Jeremy Williams, deposed that he was satisfied there is insufficient evidence of any error or fraud in the Registry

information and no correction is required. For that reason, the Registrar-General of Births, Deaths and Marriages and Relationships applied to strike out Mr P’s application in the Family Court.

[6]    The Family Court Judge’s decision also records that Mr P’s claim included an allegation that the person currently recorded on his birth certificate as his father is incorrect. This aspect of Mr P’s claim was not in dispute it seems, as Ms C filed evidence confirming that the person recorded as Mr P’s father was indeed not his biological father. She confirmed that the person named on the birth certificate (now deceased) as Mr P’s father was the person to whom she was married at the time who was recorded as Mr P’s father. The Family Court stated “at law the father identified on the birth certificate is the child’s guardian”. The decision also records that Mr P “elected” not to attend the Court on the day of the hearing.

[7]    The Family Court Judge determined that there is a “preponderance of evidence” that Ms C is Mr P’s mother. The Judge found there was no evidence of any errors on the birth certificate requiring a direction that it be corrected. The Judge also found that there was neither jurisdiction nor evidential basis to make the other directions sought by Mr P. The Judge concluded that Mr P’s evidence discloses no reasonable basis for the application and that to allow it to be pursued without any prospect of success would be an abuse of the Court’s process. Accordingly, the Judge struck out the proceeding pursuant to r 193 of the Family Court Rules. The Judge also accepted Ms C’s counsel’s submissions that Ms C is a vulnerable person, susceptible to adverse consequences if a report of these proceedings that contains identifying information is published. Therefore, the Judge directed that all reports of the proceedings in the Family Court may not be published without leave of the Court pursuant to ss 11B(3)(b)(i) and 11D(i) of the Family Court Act 1980. In light of the sensitive subject matter of the present application, and the nature of the allegations Mr P levels against Ms C, I endorse the Judge’s application of these provisions and I direct they continue to apply in respect of this aspect of the proceeding.

The applicant’s statement of claim

[8]    Mr P’s statement of claim is a 26 page document that, while tolerably well- written, is discursive and lurid in its detail. It contains a far-fetched narrative in which Mr P attempts to establish that Ms C and the father named on his birth certificate are not really his parents.

[9]As a sample of the narrative, I set out the following excerpt from Mr P’s claim:

The applicant has attested that the third respondent informed him in 2021 that in the 1970s both she and [Ms R] were baby-farming commercial surrogates and foster parents, and that she was paid to register falsely as her natural children for money disfigured, disabled, premature, ethnic-minority or otherwise unwanted and abandoned infants, while secretly giving-up as newborn infants for paid adoption her own healthy selectively-bred blue-eyed, fair-haired, white-skinned, ethnically-Nordic natural children, including children who were intentionally in-bred by closely-related parents replicating genetic ‘experimentation’ conducted in the early-1940s by German Nazis and Japanese imperialists including Josef Mengele at Auschwitz and Ishii Shiro at Unit 731. The applicant has attested that the third respondent said that it was organised by the eugenicist community founded by royalist Scots in Dunedin in the early-twentieth century, it bolstered by immigration from central Europe via Australia after the Second World War, it was corruptly facilitated and is criminally concealed to this day by a large and powerful network of middle- class, white, eugenicist professionals, and it became a major source of both seed-capital and grooming and trafficking victims for serious organised crime. The applicant has attested that, based on the third respondent’s opinions and associations in the 1970s it appears to him that she and her associates subscribed then to a white/female-supremacist eugenicist pagan ideology of hypnosis-enabled vampiric witchcraft, idolising amoral counterculture groups of the time like the Hell’s Angels and the Manson Family.

[10]   The statement of claim proceeds for the next 21 pages in similar style, including allegations that Mr P’s conscious memory has been selectively edited by “hypnotic coercion”, that he was hypnotically programmed involuntarily to appear mentally disordered, that he was prevented from coherently defending himself due to the application of “preprogramed hypnotic trigger-phrases”, that he has been subject to “hypnosis enabled and concealed vigilante torture, by abusers who hypnotically repressed his conscious memory”, and that, following an episode of hypnotic coercion in 2002 he was “unwittingly trafficked into modern slavery in an abusive illegal- immigration sex-trafficking forced-marriage in northern China.”

My assessment

[11]   Proceedings referred under r 5.35A are considered by a Judge under r 5.35B. Under that rule I may make certain orders or give directions to ensure the proceeding is disposed of or proceeds in a way that complies with the rules, if I am satisfied that the proceedings are “plainly an abuse of the process of the Court”.

[12]   The powers conferred under r 5.35B reflect the inherent power all courts have to prevent their own procedures from being misused. However, those powers must be exercised sparingly, and only in the clearest of cases. Given that the rule contemplates a litigant being denied the fundamental right of access to the courts, with the possibility of the proceeding being halted before it is even served, the abuse must be clear beyond doubt from reading the claim.2

[13]   I am satisfied that Mr P’s proceedings meet this test. None of the respondents should be required to file a defence to the extravagant, wide-ranging and unsubstantiated claims set out in Mr P’s statement of claim. The Court would be exercising poor control of its processes if it allowed the proceedings to continue and require the respondents to respond through the Court process.3

[14]   I am satisfied that, as far as Mr P’s claim relates to Ms C, the proceeding is an abuse of process. The evidence that was before the Family Court clearly established that Ms C was correctly named in the birth certificate as Mr P’s mother. Nothing he has raised in his statement of claim provide any basis for doubting that conclusion and I consider it would be unfair to require Ms C in particular to have to respond to the lurid and far-fetched allegations contained in that document.

[15]   However, there are two aspects of this proceeding that trouble me and have caused me to pause before striking out the proceeding in its entirety:

(a)The fact that part of the relief sought by Mr P included correcting the references in his birth certificate to his father. It appears to have been acknowledged by Ms C that the individual named as Mr P’s father in

2      Te Wakaminenga O Nga Hapū Ki Waitangi v Waitangi National Trust Board [2023] NZCA 63.

3      Mathiesen v Fildes [2017] NZHC 2258 at [4] and Mathiesen v Slevin [2018] NZHC 1032 at [6].

the birth certificate was not his biological father. It seems to me therefore, that the Registrar may have an obligation to inquire into and make that correction if Mr P wants it to be made.

(b)Mr P appears to have been granted leave to attend the Family Court hearing by AVL. He claims in his statement of claim that a technological issue, relating to his visual-impairment, prevented him from connecting to the hearing. I am therefore concerned that it may have been unfair for the Family Court to proceed in his absence.

[16]   Accordingly, rather than strike the proceeding out, I will exercise the power under r 5.35B(2) to direct that the proceeding be stayed until further order. In the meantime, I will give Mr P an opportunity to supply a new statement of claim that:

(a)is limited to the issue of seeking correction of the birth certificate in relation to the identity of Mr P’s father; and

(b)does not contain all of the other discursive material relating to Ms C or otherwise not directly relevant to the issue of correcting or deleting the reference to Mr P’s father on the birth certificate.

[17]   If Mr P complies with this direction, I will then authorise service of the documents on the named respondents and direct the matter to be listed in the Judge’s Chambers List to ascertain whether Mr P’s application for judicial review might be allowed by consent, with remission back to the Family Court to make the necessary orders to facilitate correction of the birth certificate.

[18]   However, if Mr P does not revise his statement of claim in the way I have directed by 30 September 2024, then his entire application for judicial review is to be regarded as struck out without further notice.

[19]   As I have (in accordance with r 5.35B(3)) made orders on my own initiative without giving the Mr P an opportunity to be heard, I am obliged to state Mr P’s right to appeal against this decision.

[20]I direct the Registrar to serve a copy of this decision on all named respondents.

McHerron J