Reeves v Indigo
[2024] NZHC 3750
•9 December 2024
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV-2024-443-79
[2024] NZHC 3750
BETWEEN REEVES
Applicant
AND
INDIGO
Respondent
Hearing: 9 December 2024 Appearances:
Applicant in person Respondent in person
K M Marriner Lawyer for Child
M Hope counsel to assist the CourtJudgment:
9 December 2024
ORAL JUDGMENT OF McHERRON J
[Application for Stay]
[1] Reeves and Indigo are the parents of Tamahine.1 There are Family Court proceedings concerning the care and custody of Tamahine, who has recently turned five.
[2] On 26 September 2024, Judge A S Greig decided that Tamahine would attend Kura A.2
[3]However, Reeves wants Tamahine to be enrolled at a different kura, Kura B.3
1 In the published version of this judgment the names of the parties, child and schools mentioned have been anonymised.
2 Indigo v Reeves FC New Plymouth FAM-2020-043-000089, 26 September 2024.
3 [Footnote not relevant to anonymised version of judgment.]
REEVES v INDIGO [2024] NZHC 3750 [10 December 2024]
[4] Judge Greig’s decision was made under s 46R of the Care of Children Act 2004.4 Following the decision, Tamahine started at Kura A on 18 November 2024. According to Indigo, she is settling in well into the new entrant class there, and is developing good relationships with her kaiako and her fellow students.
Is an injunction the correct procedure or a stay?
[5] Reeves has applied to the Court for what she has described as an injunction, as well as appealing Judge Greig’s decision.5
[6] But, having discussed this matter with the lawyers who have made helpful submissions today, Ms Marriner for Tamahine and Ms Hope as counsel assisting the Court, it is my view that today’s hearing was to decide whether Judge Greig’s decision should be stayed under r 20.10 of the High Court Rules 2016. That rule allows the Court to order that a decision is not to be implemented pending the determination of an appeal. Rule 20.10 also permits the Court to make interim orders that are broader than simply putting the decision of Judge Greig on hold.
[7] So, in my view, considering whether to stay Judge Greig’s decision is the same and just as effective as an injunction would be. I will treat the application considered at today’s hearing as an application for a stay under r 20.10.6
The substantive appeal
[8] This appeal raises important issues. They are issues that will involve careful consideration of Tamahine’s ability not only to learn Te Reo Māori in a fully
4 Section 46R of the Care of Children Act 2004 concerns the resolution of disputes between guardians. Both Reeves and Indigo are the child’s guardians. Indigo has the day-to-day care of Tamahine. At present, Reeves has supervised contact only with Tamahine: Indigo v Reeves FC New Plymouth, FAM-2020-043-89, 8 November 2024.
5 Ms Marriner helpfully pointed out that the leave of the High Court is required to appeal from a decision made under s 46R: see Care of Children Act, s 143(2). Reeves has not applied for leave to appeal. She must do so before the appeal can proceed. I have made a timetable direction for her to do so with her submissions on the appeal. The leave application can be considered alongside the substantive appeal.
6 I note that, apart from the appeal, there is no underlying proceeding in respect of which an injunction would act to create a holding position. Nor has Reeves provided an undertaking as to damages, which is required under r 7.54 to accompany an application for an interlocutory injunction. This is another factor making it appropriate that the injunction application be treated as a stay.
immersive environment in a kura kaupapa,7 but also for her to have full exposure to matters affecting her education and development as tangata whenua, (the expression used by Reeves to describe Tamahine).
[9] On the other hand, Tamahine’s father points out that Tamahine is not only tangata whenua but tangata Tiriti and so he sees it important that she has exposure and education to both these dimensions of her culture. And indeed, Reeves does not dispute that Tamahine should have access to both of these dimensions of her culture. But it is Reeves’s view that Tamahine’s access to her tangata whenua dimension should be prioritised in this case, particularly as Indigo is her primary caregiver and Reeves is concerned that otherwise Tamahine’s access to the Māori dimension may be limited in a way that is not desirable for her.
[10] As I say, these are important issues. However, the issue of what school or kura Tamahine goes to in the longer term is not for determination today. That is for consideration in the substantive appeal of this matter, which needs to be heard soon.
[11] As I discussed in detail with Ms Marriner, the substantive appeal needs to be prioritised as an urgent fixture given, among other things, the much more truncated sense of child’s time which applies to a five year old.
[12] And so when we get to the substantive appeal of this matter, the Court will need to consider the broader issues, as Ms Hope pointed out, that have been recently explained in detail by Judge King in Norton v Tyler relating to aspects of strengthening a child’s relationship with whānau, hapū and iwi, ensuring that the Treaty principle of active protection8 is upheld and that a child’s ability not only to speak Te Reo Māori
7 I note that according to the Ministry of Education’s | Te Tāhuhu o te Mātauranga Māori Schools Directory as of 2 December 2024, Kura B is affiliated with Te Rūnanga nui o ngā Kura Kaupapa Māori o Aotearoa.
8 In New Zealand Māori Council v Attorney-General [Broadcasting Assets] [1992] 2 NZLR 576 (CA) at 587 Hardie Boys J stated that “protection of the Māori language, an essential element of Māori culture, was and is a fundamental Treaty commitment on the part of the Crown”. See also New Zealand Māori Council v Attorney-General [1996] 3 NZLR 140 (CA) at 146 “Language is a cornerstone of Māori culture and identity”. Kevin Hille, Carwyn Jones and Damen Ward Treaty Law: Principles of the Treaty of Waitangi in Law and Practice (Thomson Reuters, Wellington, 2023) at [6.6.1].
but to thrive in a Māori speaking environment is promoted and furthered.9 But, as I say, that is a matter for later.
[13] For now, all I am considering is whether to, in effect, suspend or stay the decision of Judge Greig until the Court can hear and determine the substantive appeal.
The legal test for a stay
[14] In her submissions, Ms Marriner has set out the criteria that I must apply in considering whether to stay Judge Greig’s decision. Ms Marriner referred to the following factors:10
(a)whether the appeal may be rendered nugatory by the lack of a stay;
(b)the bona fides of the applicant as to the prosecution of the appeal;
(c)whether the successful party would be injuriously affected by the stay;
(d)the effect on any third parties;
(e)the importance or public interest;
(f)the strength of the appeal; and
(g)the overall balance of convenience.
[15]I will address each of these factors in turn.
(a)Reeves’s appeal will not be rendered nugatory without a stay
[16] I turn to the first of those factors, whether the appeal may be rendered nugatory. As I said in the hearing I disagree with any submission that not granting a stay will
9 Norton v Tyler [2023] NZFC 8837, [2023] NZFLR 675.
10 The Court determines an application for a stay basis of the balance of convenience between the parties: Philip Morris v Ligget & Myers Tobacco Co [1977] 2 NZLR 41 (CA) at [43] per Cooke J. The factors listed are drawn from Keung v GBR Investment Ltd [2010] NZCA 396 at [11] (which also includes as a factor “the novelty and importance of questions involved”).
make the appeal irrelevant or nugatory. As I indicated, Tamahine will be able to join Kura B at a later stage if the Court’s decision is to allow the appeal. Even if that decision is not made until after February, the continuation of the current schooling arrangement as determined by Judge Greig does not make the appeal irrelevant or nugatory.
(b)The Court does not doubt Reeves’s bona fides in prosecuting her appeal
[17] As Ms Marriner submitted, and I agree, there can be no doubt as to Reeves’s bona fides as to the prosecution of her appeal from Judge Greig’s decision. I can tell from her submissions that this is a matter relating to her and her sense of Tamahine’s core identity as tangata whenua. I have no doubt whatsoever that she has the utmost bona fides in prosecuting this appeal.
(c) and (d) Tamahine may be adversely affected if I grant a stay
[18] The next consideration is whether the successful party would be injuriously affected by the stay and that is obviously a matter that is difficult to gauge. But I see it as closely tied to the first issue of whether the appeal may be rendered nugatory. Even assuming, for the sake of argument, that Indigo will be ultimately successful on appeal, I am not concerned with whether he would be injuriously affected by a stay. Rather, my main concern now is Tamahine.11 Without wanting to predict what the outcome of the appeal will be, I do not want to disrupt her and make a change to her current schooling arrangements if they are then going to have to be changed again. So, avoiding potentially one more change in Tamahine’s schooling arrangements is a relevant consideration here.
[19] And that ties into the next consideration very closely, which is the effect on third parties; and here the “third party” is Tamahine.12 But because of the nature of this proceeding and who she is, she is the primary party in this appeal even though she is not present with us today.
11 As Ms Marriner submitted, in resolving a dispute under s 46R of the Care of Children Act, the Court is required to have regard to the overriding welfare principles in ss 4 and 5 of that Act, which results in a “child focused enquiry with the welfare and best interest of [the child] as the paramount consideration”: Baker v Lawrence [2022] NZHC 2734 at [8].
12 In her written submissions, Ms Marriner noted the effect on other third parties, namely Tamahine’s classmates, but I do not consider their interests to be influential in this decision.
(e)The public interest in Tamahine continuing her current schooling arrangements (at least pending the appeal)
[20] Ms Marriner has spoken eloquently about the public interest in Tamahine continuing with her education, and I agree that is an important public interest in this case. Giving Tamahine some continuity and not disrupting her schooling is a factor counting against a stay (even though I accept that is not such a huge issue in this case because we are about to head into the holidays).13
(f)The strength of the appeal is not a factor I will assess or put weight on in this stay application
[21] I will take a back seat on the strength of the appeal at this stage. Ms Marriner has made submissions in which she has indicated that the merits of the appeal are weak. I will be non-committal on that. It is premature for me to express a view on the strength of the appeal, and so I am not going to treat that as any part of my consideration.
(g)The balance of convenience favours Judge Greig’s decision continuing in effect in the meantime
[22] I turn to the final consideration, the overall balance of convenience. Considerations (e), (d) and (c) are most relevant. It is in Tamahine’s best interests to maintain continuity in her schooling in the meantime until the Court can substantively determine the outcome of Reeves’s appeal.
The application for a stay/injunction is dismissed
[23] Accordingly, my decision is not to grant a stay of Judge Greig’s decision. Reeves’s application for an injunction is dismissed.
Setting down the appeal and timetable directions
[24] As I have indicated, this appeal to be treated as an urgent appeal. I direct that the appeal is set down for a half day hearing as soon as possible after 2 February 2025.
13 To clarify, despite the break, it appears Tamahine will recommence school on or around 30 January 2025 and so she will return to Kura A after the school holidays, before the appeal is finally heard.
[25]I make the following timetable directions, as discussed with counsel:
(a)Reeves’s submissions on the appeal (including her application for leave to appeal) are to be filed in Court and served on Indigo, Ms Marriner and Ms Hope no later than 10 January 2025.
(b)Indigo is to file in Court and serve his submissions on the appellant, Ms Marriner and Ms Hope by 17 January 2025.
(c)Ms Marriner is to file and serve her submissions by 23 January 2025.
(d)Ms Hope is to file and serve her submissions by 30 January 2025.
(e)The common bundle is to be jointly prepared by Ms Hope and Ms Marriner. An agreed index is to be prepared by the time Ms Marriner goes on leave on 23 January 2025, with the bundle to be filed and served by 30 January 2025. Each party’s submissions to the Family Court on schooling is to be included in the bundle.
Addendum — counsel assisting the Court
[26] During the hearing, Indigo expressed a concern that Ms Hope’s submissions appeared to favour Reeves’s interests rather than his own. He asked whether, if Ms Hope was assisting Reeves in this way, he could have his own “counsel assisting” appointed.
[27] After I delivered this judgment, following Indigo’s comments, Ms Hope asked me to formally explain her role.
[28] Ms Hope has been appointed as lawyer to assist the Court.14 During the hearing of the stay application I explained that my expectation is, in accordance with the usual understanding of that role, that Ms Hope is required to act neutrally and impartially in assisting the Court.
14 Reeves v Indigo HC New Plymouth CIV-2024-443-79, 27 November 2024 (Minute of Gwyn J) at [10]. Gwyn J noted that Ms Hope had acted as lawyer assisting the Family Court as well.
[29] It is open to any party to Court proceedings to engage a lawyer but, where the parties are self-represented and complex issues arise, it is common for the Court to appoint counsel assisting. But it is critical that counsel assisting remain objective and not make submissions that appear partial to one party’s interests over the other’s.
[30] Ms Hope is not counsel for Reeves and nor does she act on Reeves’s instructions. Rather, Ms Hope’s role is to assist the Court by bringing her legal expertise and experience to bear on the issues that are under consideration in this appeal and to provide objective submissions that are not aligned with any one party’s interests or the other’s.
McHerron J
Solicitors:
KM Legal, New Plymouth, Counsel for the Child
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