Rose v Family Court at Christchurch
[2015] NZHC 1597
•8 July 2015
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2015-409-000229 [2015] NZHC 1597
BETWEEN JENNY ROSE
Applicant
AND
THE FAMILY COURT AT CHRISTCHURCH
First Respondent
DON MCKAY Second Respondent
Hearing: 7 July 2015 Appearances:
A Corry for Applicant
P A Cowey for Second RespondentJudgment:
8 July 2015
JUDGMENT OF GENDALL J
This is an anonymised version of my 8 July 2015 judgment in this matter. The names of the parties and the intended witness and certain other details have
been changed.
ROSE v THE FAMILY COURT AT CHRISTCHURCH [2015] NZHC 1597 [8 July 2015]
Introduction
[1] On 21 April 2015 the applicant filed an application in this Court for judicial review of two decisions made by the Family Court in preparation for a hearing which is due to take place on 20 July 2015 over care arrangements for the [...] old daughter of the applicant and the second respondent.
[2] In the District Court on 20 December 2014 Her Honour Judge J Moran refused leave to allow late filing by the applicant of an affidavit of Ms [X]. On
30 January 2015 she also refused leave to appeal that decision.
[3] The applicant being dissatisfied with these decisions initially brought an appeal to this Court. On 11 March 2015 Nation J effectively declined jurisdiction to hear the appeal and later, on 29 May 2015, awarded costs against the applicant who was the intended appellant.
[4] In the meantime, the present judicial review application had been filed. According to counsel for the second respondent in fact this application endeavours to challenge the merits of the decisions made by Judge Moran in the District Court in seeking an order from the High Court that the affidavit evidence of Ms [X] be admitted. And, in any event, even if the present application was to succeed, Mr Cowey, counsel for the second respondent, suggests that a likely outcome instead of such an order being made would simply be a referral back to the Family Court with a direction to re-hear the application to admit Ms [X]’s evidence.
Background facts
[5] The applicant and the second respondent were married and have one daughter who was born on [...] On [...] 2010 they separated. Thereafter the relationship between them clearly became extremely acrimonious. Disputes between them in the Family Court and elsewhere have a long and bitter history. Final parenting orders were made for their daughter on [...].
[6] The context in which the present judicial review application is brought relates to a stance taken by the applicant to resist any contact between the second
respondent and his daughter in particular unless it is supervised. This arises because of serious allegations made by the applicant that the second respondent had sexually abused their daughter. Included in the evidence before the Court are a series of statements the daughter is said to have made to her mother, her aunt, her maternal grandmother and a doctor that “her bottom was sore when Daddy puts his finger in
it” and the like.
[7] The daughter has since seen a number of independent specialists who have provided reports and evidence to the Court that, as I understand it, generally conclude that their investigations do not specifically support the allegations which have been made.
[8] The affidavit evidence for which the applicant sought the leave of the District Court to file is an affidavit of Ms [X], a person working for the applicant’s wider family, which was sworn on 17 December 2014. In this, Ms [X] deposes that she knows the applicant and her sister and brother-in-law for whom she works and whilst babysitting for them on [...] 2014 she saw the daughter. This was nearly four weeks after the last date directed by the Family Court for filing all evidence in this matter. On that [...] 2014 occasion, Ms [X] deposes that the daughter made an unsolicited claim to her that:
Daddy put his finger up my bum. He put it all the way up and it really really hurt. He kept putting his finger up my bum until it couldn’t go any more. Daddy is naughty man and that’s why [...] [the supervisor in the contact arrangements] always comes when I visit Daddy.
[9] Whilst all the allegations made against the second respondent are serious, his position is that they are emphatically denied and need to be taken here strictly in context. He says the allegations are entirely false and have been used quite disgracefully to support the position advanced by the applicant on care and contact arrangements for their daughter. The second respondent maintains also that they relate to a continuing history on the part of the applicant of several years of allegations of assault, rape and threats to rape made by the applicant against him. He suggests the allegations of abuse by his daughter are simply planted in her mind by her mother, the applicant, to support the mother’s position on those care and contact arrangements. He maintains also that two additional matters are noteworthy. The
first of these according to him is that none of the experts who have investigated the allegations (Dr [...], the social worker who completed the s 132 report, and the psychologist [...]) has accepted the position advanced by the applicant. The second of these is his contention that the veracity of the applicant and her evidence has been tested before in two courts and this has been found to be significantly wanting.
[10] What is also clear here is that the application by the parties to reconsider the care arrangements for the daughter has, for some time now, been set down for hearing in the Family Court for five days commencing on [...] July 2015. On this aspect, counsel for the second respondent has stated that if leave is granted to this additional evidence of Ms [X] being allowed, there is a likelihood that (given the number of other witnesses who are already required) the already short time available for this hearing may well be in jeopardy. Additional hearing time, he maintains, would then be required with all the attendant delays inherent in a re-scheduling arising. The second respondent says this alone justifies the exclusion of Ms [X]’s evidence as it would needlessly prolong this long-running proceeding in terms of s
8(1)(b) Evidence Act 2006.
Jurisdiction
[11] A well established general principle exists that the High Court has jurisdiction to judicially review a decision of the Family Court.1 Statutory powers of decision-making are exercised by Judges of the Family Court and accordingly they are subject to judicial review. On this, however, it is also well established that this judicial review jurisdiction is one to be exercised sparingly.
[12] The application for leave to appeal Judge Moran’s decision was brought under s 143(3) Care of Children Act 2004. Section 143(3) provides that interlocutory or interim orders may only be appealed with the leave of the Family (or District) Court. It is that refusal of leave by Judge Moran which in part is the subject of the present judicial review application.
[13] On these aspects, it is also useful to note the general principle confirmed in the decision of Ellis J in Malone v Auckland Family Court & Malone2 that the judicial review jurisdiction in cases such as the present is one to be exercised sparingly. On this she said at [53]:
[53] Secondly, except in a very clear cut case of fundamental error, there is a risk that the grant of an application for review of a decision made under s 143(3) [Care of Children Act] would undermine the policy objectives that underlie that provision.
[14] With these principles in mind I turn now to consider the present application.
Counsel’s arguments and my decision
[15] At the outset, counsel for the applicant contended that, if the evidence of Ms [X] in question had been available prior to 6 November 2014 and filed then, there was no question as to its relevance and it would have been admitted as of right. It was only because the hearsay statements made to Ms [X] by the parties’ daughter were not made until early December 2014 that, of course, leave was required.
[16] Next, counsel for the applicant contended that the fact that the daughter made this further statement to Ms [X] of the kind she did might go to questions as to the honesty of her allegations against the second respondent and address issues that rather she was simply being coached to make these claims. As such, it is contended in terms of s 7 Evidence Act 2006 that as relevant evidence it clearly relates to matters of consequence in the determination of the proceeding between the parties.
[17] On this question of relevance, counsel for the second respondent acknowledged that Ms [X]’s hearsay evidence was relevant but he went on to say it added little because, as Judge Moran found in her decision under review, there is:
…already an abundance of evidence before the Court of such allegations by [the daughter] and further evidence of the child’s statements will not serve to advance matters for the Court.
[18] And he noted too that, on these aspects, Judge Moran in her decision went on to state:
It is not the fact that [the daughter] is making statements of this type but rather, why she is making them which is the issue for determination; are the statements true or are there other factors impacting on [the daughter].
[19] Judge Moran then recorded that there was already evidence from a number of parties regarding statements to similar effect which had been made by the daughter, and also particularly there was other evidence of the various expert witnesses which were relevant to the consideration here. It was partly on this basis that she declined to grant leave to appeal her earlier decision refusing leave for the further affidavit of Ms [X] to be filed.
[20] Next, counsel for the applicant contended first that little or no consideration of the probative value of Ms [X]’s evidence was undertaken and, further, that Judge Moran had erred in limiting her enquiry into the substantive issues which were before the Court without hearing from the parties over whether leave should be granted here. As a result, the applicant contended that Judge Moran had pre- determined issues which were quite wrong and in breach of natural justice rights. Finally, the merits and weight of matters contained in Ms [X]’s evidence which were trial issues were not given consideration.
[21] On all these matters, however, I remind myself of the comments made by
French J in Aorangi School Board of Trustees v Minister of Education:3
…Contrary to popular belief, judicial review is not an appeal. It is not about the Court considering the information afresh and coming to its own view. Judicial review is primarily limited to an examination of the process, and if successful usually results in the decision-maker being required to start afresh, as opposed to quashing the decision for all time.
[22] In the present case I have little doubt that in all the circumstances prevailing in this long-running Family Court litigation in which these parties have been embroiled, Judge Moran did not err procedurally and followed a correct process when declining to grant leave for the filing of Ms [X]’s affidavit out of time. In my view she did not fail to take into account relevant considerations, nor did she apply the incorrect test to the admission of evidence, nor did she exhibit pre-determination in her decision. Although the Judge no doubt did consider the proposed evidence to
be relevant, it was open to her to conclude the proposed affidavit would not further assist the Court in answering the real question before it given particularly the presence of other witnesses who would confirm similar hearsay statements made to them by the daughter. Judge Moran clearly based her decision here on her assessment that the proposed affidavit would not assist and presumably that it would do little more than unduly protract the proceedings. In her 30 January 2014 minute, she found that “there is already an abundance of evidence before the Court of such allegations by [the daughter]” and that the real issue for determination was rather “…not the fact that [the daughter] is making statements of this type but rather, why she is making them…i.e. are the statements true or are there other factors impacting on [the daughter].”
[23] In my view in reality the present judicial review application is really an appeal simply dressed up as a judicial review. There is no procedural issue of any moment at stake here. The application merely records the applicant’s disagreement with the position taken by Judge Moran and in my view certainly does not meet the threshold of a “very clear cut case of fundamental error” to justify a review being ordered. The applicant’s disagreement with the Family Court’s assessment of the probative value of this evidence, as I see the position, is not a valid ground for judicial review. The decision Judge Moran made as to an assessment of the value of the affidavit in question was a decision open to her. Her conclusion, as a longstanding and experienced Family Court Judge, that this evidence would add little and would not serve to advance matters before that Court, based on the voluminous material which the parties have seen fit to place before this Court alone, in my view was a soundly based one.
[24] The policy reasons behind s 143(3) Care of Children Act restricting the ability of parties to these proceedings to appeal interlocutory decisions are clear. As this Court noted in BLH v MNL:4
There are obvious policy reasons for Parliament preventing satellite litigation; appeals to the High Court in the course of the Family Court resolving the issues in a set of proceedings. The goal of this litigation in the Family Court is for the Court to settle the shared parenting of this child because the parents themselves cannot agree. I think the restraints on
4 BLH v MNL [2014] NZHC 194 at [25] per Fogarty J.
appeals in each of the Domestic Violence Act 1995, Care of Children Act
2004 and Family Proceedings Act 1980 are intended to ensure that the whole process is completed in the Family Court before there is a right of appeal.
[25] It is also useful here to note the specialist nature of the Family Court in dealing with issues of this type arising as they do often and on a regular basis in that jurisdiction.5
Outcome
[26] For all the reasons outlined above, it will be apparent that the present application for judicial review must fail. None of the grounds advanced by the applicant meet the threshold for judicial review of decisions made under s 143(3) Care of Children Act. In my judgment Judge Moran’s decisions did not disclose a reviewable error.
[27] The application is dismissed.
Costs
[28] As to costs, the second respondent has been successful in opposing this application and I see no reason why costs should not follow the event as is the normal course.
[29] Costs are awarded to the second respondent here against the applicant with respect to this application on a category 2B basis together with disbursements as fixed by the Registrar.
...................................................
Gendall J
Solicitors:
Angela Corry, Barrister, Christchurch
Parry Field Lawyers, Christchurch
5 See C v E [2007] 4/2481, 2 July 2008 Family Court at [4].
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