Ross v Family Court at Auckland
[2021] NZHC 3204
•26 November 2021
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,
PLEASE SEE https:// judgments/
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-000092
[2021] NZHC 3204
UNDER New Zealand Bill of Rights Act 1990, the Judicial Review Procedure Act 2016 and r 30 High Court Rules 2016 IN THE MATTER
of Judicial Review of decisions under the Care of Children Act 2004
BETWEEN
ROSS
Applicant
AND
THE FAMILY COURT AT AUCKLAND
First Respondent
STANLEY
Second Respondent
Hearing: 23 November 2021 Appearances:
Applicant in person
Appearances excused for First Respondent M J Flannagan for Second Respondent
S P Jerebine as counsel to assist the Court
Judgment:
26 November 2021
Reissued:
9 December 2021
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie on 26 November 2021 at 4.00 pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Date:…………………………
ROSS v THE FAMILY COURT AT AUCKLAND [2021] NZHC 3204 [26 November 2021]
Introduction
[1] The applicant, Mr Ross,1 seeks to judicially review decisions made or directions given by five Judges in the Family Court over a period of some two years. The impugned decisions/directions relate primarily to pre-trial and procedural matters. Mr Ross also alleges that one Family Court Judge was biased against him. He seeks to set aside not only the decisions/directions challenged but also the substantive orders ultimately made in mid and late 2020. He wants the Family Court to rehear the matter.
[2] The first respondent, the Family Court at Auckland, advised that it will abide the decision of the Court. It helpfully collated a bundle of relevant materials. I am grateful for its assistance in this regard. The second respondent, Ms Stanley, also advised that she will abide the decision of the Court. She and her counsel, Ms Flannagan, sat in on the hearing as they were entitled to do.
[3] By minute dated 22 April 2021, Lang J directed the Solicitor-General to appoint counsel to assist the Court. Ms Jerebine was appointed and she appeared as counsel assisting.
Background
[4] Mr Ross and Ms Stanley were in a domestic relationship. Sadly, their relationship did not last and they separated many years ago.
[5] They are the parents and joint guardians of a child, C, who is now a teenager. Mr Ross and Ms Stanley have been unable to agree on matters relating to C. They have been involved in litigation in the Family Court for many years. Their proceedings began in 2009 – some 12 years ago.
[6] A final parenting order was made pursuant to s 48 of the Care of Children Act 2004 (“the Act”) in 2011 by Judge de Jong in the Family Court at Auckland.2 It provided for shared parenting.
1 The names of the parties have been anonymised. [Ross] v [Stanley] FC Auckland FAM-2009-090- 789, 30 May 2011.
2 [Ross] v [Stanley] FC Auckland FAM-2009-090-789, 30 May 2011.
[7] Mr Ross and Ms Stanley were unable to agree which school C should attend. In 2012, following application, an order was made under s 46R of the Act in relation to C’s schooling.
[8] In November 2017, Mr Ross applied under s 56 of the Act to vary Judge de Jong’s parenting order in various respects. Ms Stanley opposed this application. She sought that the then current arrangements should remain in place. The application was heard and declined by Judge Burns in the Family Court at Waitakere in December 2017.3
[9]In July 2018, Ms Stanley filed an application seeking:
(a)leave to bring the application;
(b)to vary the parenting order under s 56; and
(c)to change C’s schooling arrangements under s 46R.
[10] Mr Ross then made his own application under s 46R, again in relation to C’s schooling arrangements. Later, in May 2019, Mr Ross filed an application under s 56 seeking to vary the parenting order as well.
[11] In October 2018, Judge Neal, in the Family Court at Waitakere, made an interim parenting order by consent.4 This resulted in further disputes, the filing of multiple applications by Mr Ross, another application by Ms Stanley, and various directions and interlocutory orders by the Family Court.
[12] Judge J G Adams ultimately heard the extant s 56 and s 46R applications on 9 and 10 July 2020 and he made final orders on 20 July 2020.5 He put in place new care arrangements for C and directed which school he was to attend.
3 [Ross] v [Stanley] [2017] NZFC 9830.
4 [Stanley] v [Ross] FC Waitakere FAM-2009-090-789, Directions dated 11 October 2018.
5 [Stanley] v [Ross] [2020] NZFC 5684.
[13] Mr Ross then applied for a partial rehearing of the matter or, in the alternative, for the discharge of all orders made. This application was declined by Judge Adams on 17 August 2020.6
[14] Finally, Judge Adams dealt with costs on 29 October 2020.7 He awarded costs against Mr Ross.
[15] Judge Adams’s various substantive judgments have not been appealed. Rather, Mr Ross filed two separate statements of claim in this Court seeking judicial review of a number of the decisions and/or directions made and making various public interest claims.
[16] The statements of claim contained much that was irrelevant and/or inappropriate. At a case management conference on 4 March 2021, van Bohemen J advised Mr Ross that it was difficult to understand which decisions he was seeking to challenge and on what bases.8 He noted that it was not open to Mr Ross to advance general public interest claims. The Judge observed that review proceedings are concerned with the lawfulness of decisions made by inferior Courts or tribunals and that they do not afford the opportunity to advance general proposals for reform of Family Court processes nor an opportunity to pursue complaints about the alleged conduct of counsel for other parties.
[17] On 15 April 2021, Mr Ross filed an amended statement of claim, consolidating both earlier statements of claim and challenging specific decisions or directions. Six claims were made. Claims 1 to 4 challenged specific directions made in the course of the proceedings. Claim 5 alleged bias by one Judge involved in the matter and claim 6 challenged the three substantive decisions made by Judge Adams.
[18] At a further case management conference before Walker J on 20 May 2021,9 Mr Ross advised the Court that he would not be pursuing claims 1, 3 and 5. However,
6 [Stanley] v [Ross] [2020] NZFC 6911.
7 [Stanley] v [Ross] [2020] NZFC 9436.
8 [Ross] v Family Court at North Shore HC Auckland CIV-2020-404-2393, CIV-2021-404-92, minute of 4 March 2021.
9 [Ross] v The Family Court at Auckland HC Auckland CIV-2021-404-92, minute of 26 May 2021.
shortly after the conference, he resiled from this position, stating that he had proposed the reduction for “expediency” and so that he could obtain an early hearing date.
[19]In the event, the matter was set down for hearing on 18 August 2021.
[20] Mr Ross’ initial submissions in support of his application ran to 149 pages, comprising 627 paragraphs. In a minute issued on 16 August 2021, Muir J directed Mr Ross to file a synopsis of his submissions, comprising no more than five pages for each of his six claims.10 Although there is nothing in the Court file recording what happened, the hearing scheduled for 18 August 2021 did not proceed. I assume it was vacated because of the Covid-19 lockdown in place at the time. Rather, Muir J directed the Registry not to allocate a new hearing date until it had received from Mr Ross a maximum 30 page summary of the key points arising from his earlier submissions.11 This never happened. Rather, on 27 August 2021, Jagose J directed that the matter should be allocated a one day hearing, with the caveat that Mr Ross and Ms Jerebine would be held to strict time limits.12
[21] As a result, on the reallocated date (23 November 2021), I was faced with Mr Ross’ amended statement of claim (33 pages), a redraft of his primary submissions (94 pages), his submissions in reply (54 pages) and a “synopsis” of his submissions (76 pages). Necessarily, I put in place time limits. I directed that Mr Ross was to complete his submissions by 12.30pm (allowing him two and a half hours, less 15 minutes for the morning tea adjournment), that Ms Jerebine was to complete her submissions by 4.00pm (two and a half hours, less an afternoon tea break of 15 minutes and allowing for a lunch break of one hour) and that Mr Ross would then have an hour for any submissions in reply. In the event, both Mr Ross and Ms Jerebine completed their respective submissions well within the allotted times.
10 [Ross] v The Family Court at Auckland HC Auckland CIV-2021-404-92, minute of 16 August 2021.
11 [Ross] v The Family Court at Auckland HC Auckland CIV-2021-404-92, minute of 23 August 2021.
12 [Ross] v The Family Court at Auckland HC Auckland CIV-2021-404-92, minute of 27 August 2021.
The impugned decisions
[22]Mr Ross challenges the following:
(a)a direction made by Judge C L Cook in a minute dated 20 July 2018;13
(b)directions made by Judge B H S Neal on 11 October 2018;14
(c)a direction made by Judge E B Parsons on 21 June 2019;15
(d)directions made by Judge B R Pidwell on 9 September 2019;16
(e)Judge Pidwell’s impartiality; and
(f)Judge Adams’ judgments of 20 July 2020, 17 August 2020 and 29 October 2020.17
[23] Mr Ross’ primary concern is that the directions/judgments were unlawful. He argued that they breached the rules of natural justice contrary to s 27 of the New Zealand Bill of Rights Act 1990 and that he was denied a fair hearing as a result. He emphasised that the welfare and best interests of C were the first and paramount consideration pursuant to s 4 of the Act and asserted that this provision was ignored by the various Judges who dealt with the file.
[24]I consider each of the impugned decisions and the allegation of bias.
Direction made on 20 July 2018
[25] Ms Stanley’s application under ss 46R and 56 of the Act (see above at [9]) was filed on a without notice basis. Because of Judge Burns’ judgment given in December 2017, Ms Stanley also sought leave under s 139A to bring the application.
13 [Stanley] v [Ross] FC North Shore FAM-2009-090-789, memorandum of 20 July 2018.
14 [Stanley] v [Ross], above 4 3.
15 [Ross] v [Stanley] FC Waitakere FAM-2009-090-789, minute of 21 June 2019.
16 [Stanley] v [Ross] FC Waiakere FAM-2009-090-789, minute of 9 September 2019.
17 See above at 5, 6 and 7.
[26]Relevantly, Judge Cook, in a directions minute issued on 20 July 2018:
(a)declined the application for leave pursuant to s 139A;
(b)directed that the application proceed on notice;
(c)declined to make an interim parenting order;
(d)declined to make an interim order pursuant to s 46R;
(e)directed that the application and supporting affidavit filed by Ms Stanley be served; and
(f)directed that the application be placed on the standard track.
[27] The Judge used a template form. A paragraph directing the parties to attend family dispute resolution (“FDR”) under s 46F(2) of the Act was crossed out. No reasons for this deletion were given.
[28] Mr Ross argued that the Judge acted unlawfully when she declined to direct that the parties attend FDR. He submitted that he was not heard in relation to this issue and that he should have been. He put it to me that the requirements of natural justice were breached and that:
… [his] accessibility to [FDR] as a service provided by the Ministry of Justice [was] thwarted in breach of [his] constitutional rights to justice under s 27 of the New Zealand Bill of Rights Act.
[29] Generally, where application is made under s 46R of the Act, the application must be accompanied by a FDR form signed by the service provider within the preceding 12 month period.18 Parliament has imposed this requirement in an endeavour to minimise resort to the Family Court; parties should first try and resolve their guardianship dispute before they seek judicial direction. However, pre- commencement dispute resolution is not required in every case. Section 46E(4)(b)
18 A family dispute resolution form is a form recording that family dispute resolution is inappropriate, or that it has been tried and failed: Care of Children Act 2004, s 46D and Family Dispute Resolution Act 2013, s 12.
provides that a FDR form is not required to accompany an application that is made without notice. Further, s 46E(4)(f) provides that a FDR form is not required if the s 46R application is accompanied by an affidavit deposing that at least one of the parties to the family dispute is unable to participate effectively in FDR or that at least one of the parties to the family dispute has been subjected to domestic violence by any of the other parties to the dispute.
[30]In the present case, a FDR form was not required because:
(a)Ms Stanley’s application was made without notice; and
(b)the application was accompanied by an affidavit from Ms Stanley in which she alleged that Mr Ross had sent her aggressive emails, that he had ignored her responses, and that they had met and listened calmly to each other but that they could not agree. She deposed that in their attempt to discuss issues, Mr Ross “got personal”. Ms Stanley said that thereafter Mr Ross’ emails became more aggressive and that they were sent not only to her but also to others involved in C’s schooling. She annexed a copy of the email chain. She expressed concern for C’s emotional safety and also asserted that Mr Ross was “extremely psychologically abusive of [her]”. She said that both she and C had been in “receipt of psychological abuse from [Mr Ross]” over C’s schooling. She asserted that the abuse was escalating and that she had previously had to engage with Womens Refuge over Mr Ross’ behaviour.
The Registrar did not err in accepting Ms Stanley’s application for filing.
[31] Notwithstanding that no FDR form was provided, because an application had been made to the Family Court for a direction under s 46R, the Judge had a discretion to direct the parties to attend FDR.19 Such direction could only be made if the Judge considered that there was a reasonable prospect that FDR would assist the parties in reaching agreement and resolving the matters in dispute.
19 Care of Children Act 2004, s 46E.
[32] Judge Cook must have considered the possibility of requiring FDR because she deleted the requirement that the parties attend FDR in the template directions form. She did not seek the views of the parties before making the deletion. Nor did she explain why she declined to direct FDR.
[33] I am not persuaded that the Judge had to seek the parties’ views before declining to direct FDR.
[34] Rule 416J of the Family Court Rules 2002 provides that as soon as practicable after an application without notice is accepted for filing, it must be referred to a Judge for consideration on the papers in chambers. Following consideration, the Judge can make whatever directions he or she thinks fit, and must, in relation to each order sought, do one of the following:
(a)decline to make an order, in which case the Judge must, if the issues in dispute are urgent, direct that the application proceed to a hearing in accordance with r 416U; or
(b)direct that the application be dealt with as if it had been made on notice and that the proceedings be dealt with on the standard track (whether or not the Judge also makes a direction under s 46F of the Act that the parties to the proceedings attend FDR);
(c)or direct, under s 46F of the Act that the parties to the proceedings attend FDR.
[35] The Judge took option (b) above. There was no requirement to direct FDR. Rather, there was a discretion conferred on the Judge. Similarly, s 46F(2) conferred a discretion on the Judge. It provided that at any time before the s 46R application was finally determined, the Judge could direct the parties to attend FDR.
[36] Judge Cook directed that the application should proceed on notice and be dealt with on the standard track. As a result, it would necessarily come before the Court again to get it ready for hearing and to allocate a fixture. The parties would be heard
at that stage. I do not consider that she needed to hear from the parties before declining to direct FDR because it was open to her of her own volition, or on application from the parties or either of them, to direct FDR at any time.
[37] It would have been preferable if the Judge had explained briefly why she was not directing FDR in relation to the s 46R application.
[38] Absent specific statutory direction, the law does not impose a general duty to give reasons. It is however generally accepted that it is the function of professional Judges to give reasons for their decisions.20 The giving of reasons is a salutary discipline for those who have to decide anything that affects others. It encourages a careful examination of the issues, the elucidation and consideration of relevant considerations, the articulation and rejection of irrelevant considerations and consistency in decision making. A reasoned decision enables a person adversely affected to know whether he or she has a ground on which to challenge the decision. Reasons assist an appellate or reviewing Court to more effectively scrutinise the decision for error.21
[39] Notwithstanding that it would have been preferable for the Judge to have given brief reasons, I am not persuaded that she committed a reviewable error when she failed to do so in the circumstances of this case. The Judge’s decision not to direct FDR had ample foundation on the materials which were available to her. As I have noted, Ms Stanley had filed an affidavit in support of her application, alleging psychological abuse and explaining that the parties had met and endeavoured to resolve their differences, albeit unsuccessfully. It was open to the Judge to conclude that there was little prospect that FDR would assist the parties in reaching an agreement in relation to C’s schooling. The Judge was simply making procedural
20 R v Knightsbridge Crown Court, Ex p International Sporting Club [1982] QB 304; Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377; and see generally De Smith and others De Smith’s Judicial Review (8th ed, Sweet & Maxwell, 2018) at 7-088 et seq. See also Lewis v Wilson & Horton (2000) 18 CRNZ 55 (CA) at [74]-[87]; Belgiorno-Nettis v Auckland Unitary Plan Independent Hearings Panel [2019] NZCA 175 at [46]-[55]; Waikanae Christian Holiday Park Inc v New Zealand Historic Places Trust Maori Heritage Council [2015] NZCA 23 at [66]-[75] and see generally A to NZ of New Zealand Law – Administrative Law (online ed, Thomson Reuters) at [2.25.4.11].
21 De Smith’s Judicial Review, above n 20, at 7-093.
directions and it was open to Mr Ross throughout to request the Family Court to direct FDR.
[40] Even if I had concluded that there was a reviewable error, I would have declined Mr Ross relief. Whether or not FDR should have been directed has become academic. The dispute ultimately proceeded to a substantive hearing where both parties were given the opportunity to ventilate their various concerns. Further, there has been significant delay. Setting aside the Judge’s direction and requiring FDR would not be in C’s best interests.
[41]The application for review of the direction made on 20 July 2018 is declined.
Directions made on 11 October 2018
[42] Both Ms Stanley’s and Mr Ross’ s 46R applications were set down for a half- day hearing. It seems from the Family Court file that there was a settlement conference on 11 September 2018 and that tentative agreement was reached on both Ms Stanley’s s 56 variation application and on the s 46R dispute applications. The tentative agreement was reduced to writing and circulated to the parties and counsel for C so that they could confirm whether or not they consented to the proposals recorded.
[43] The matter came back before Judge Neal on 11 October 2018. He issued various directions. He recorded that the s 46R guardianship disputes had been resolved by consent and that the parties had agreed which school C should attend. He also made an interim parenting order, again by consent, in terms of an amended draft. He adjourned matters to a direction conference after the 2019 July school holidays for review.
[44] Mr Ross then filed a memorandum, inter alia asserting that he had not consented to some aspects of the orders made. A copy of the memorandum was not put before the Court but, as I understand it, Mr Ross was asserting that he had agreed to settle for an interim period only and that what he agreed to was only a test to see whether Ms Stanley could comply with a Court order.
[45] On 19 October 2018, Judge Neal issued a minute directing that Ms Stanley respond to Mr Ross’ memorandum within 14 days, that counsel for C report within 21 days and that the matter then be referred back to him for consideration.
[46] It seems from the file that Ms Stanley and counsel for C responded as directed and Mr Ross then asked the Registrar whether or not he could file a response. The Registrar replied on 19 November 2018 asking for any response memorandum and Mr Ross filed a memorandum on 21 November 2018.
[47] According to a note made by the Registrar, the file was referred to the Judge on 22 November 2018.
[48] Nothing was heard from the Court and, on 12 December 2018, Mr Ross sent an email to the Registrar asking when Judge Neal was scheduled to attend to the matter. The Registrar responded saying that the file was with the Judge and that Mr Ross would be advised of any directions made once the file had been received back.
[49] It appears, again from a note made by the Registrar, that the Judge returned the file and recommended that the matter be dealt with by a resident Judge because he was then based in Christchurch. I do not know when this occurred.
[50] Mr Ross does not seem to have been told of this. Nor it seems was the file referred to another Judge in a timely manner. From Mr Ross’ perspective, nothing happened and, on 7 March 2019, he asked the Registrar whether or not the Judge had returned the file, either with or without directions. The Registrar replied advising that the file had not been received back by the Registry.
[51] Judge Parsons eventually considered the matter on 16 May 2019. She issued directions. They record as follows:
On 11 October 2018 orders were made by consent in relation to the S46R issue of schooling (agreed that [C] attend … Junior High School from 2019). Consent orders were also made in relation to interim s48 parenting orders which provided for [C] to be in his mother’s care 11 nights a fortnight and in his father’s care for 5 nights a fortnight.
2. A memorandum was filed by [Mr Ross] on 16 October 2018 raising a number of procedural concerns and asserting he had not consented to the orders made. No applications accompanied this. In the absence of any applications, appeals and/or judicial reviews the 11 October 2018 orders remain valid.
3. Both Ms Flannagan [for Ms Stanley] and Dr Cooke (for the child) have filed memoranda in response as directed by the Court. The file has then been referred to the Waitakere Court for consideration of all the memoranda filed.
4. A subsequent s 56 application has been filed today (16 May 2019) by [Mr Ross] on the Eduty platform which has been placed on notice and consolidated with the current proceedings.
5. The consolidated proceedings are due to be allocated a directions conference (currently 29 July 2019 or earlier if one is available after time for filing a notice of response expires).
6. The next event for this matter is a directions conference of the consolidated proceedings.
[52] Mr Ross told me at the hearing that he never received a copy of these directions.
[53] The way in which the matter was handled by the Family Court is unfortunate. It seems that the file ‘fell between the cracks’ and that the July 2019 review of the consent orders made in October 2018 did not occur.
[54] Mr Ross submitted that he had a legitimate expectation that the Judge would review the interim parenting order made by consent. He also says that the Court had a duty to progress the review and that the Judge acted “in dereliction of his duty” when he failed to progress the matter.
[55] I am not persuaded that any error was made by Judge Neal. He made various directions. Those directions are not in themselves unlawful. He was entitled to assume that the Family Court Registry would ensure that memoranda filed were promptly brought to his attention. This happened. The file was referred back to him promptly after all memoranda had been filed. He suggested that it should be dealt with by a Judge in Auckland because he was by then resident in Christchurch. It seems that the Registry did not promptly action this suggestion, but this was an error by the Registry and not by the Judge.
[56] As I have already noted, the memoranda filed have not been adduced in evidence and they are not in the common bundle. Insofar as I can glean, Mr Ross did not file an application in relation to the interim parenting orders made by the Judge. Had an application been filed it may have resulted in something happening rather more quickly. Indeed, Mr Ross could have sought a variation of the interim parenting order made on 11 October 2018 at any time. He took no steps to do so. Rather, the interim parenting order made by Judge Neal has been overtaken by the substantive decision made by Judge Adams and the relief sought by Mr Ross in the review proceedings has become academic. As has been noted in other contexts, there is a need in all litigation to concentrate on what is important and significant and not to become preoccupied or distracted by inconsequential detail or trivia.22 Here, the failure to promptly review the interim parenting order after the July 2019 school holidays cannot lead to a total failure of the whole proceedings, requiring that the matter be reheard in its totality. There is considerable delay and it is not in C’s best interests to reopen the issue. The application for review of the directions made on 11 October 2018 is dismissed.
Direction made on 21 June 2019
[57] The file came back before Judge Parsons in the Family Court at Waitakere on 21 June 2019. Appearances were entered by Mr Ross and counsel for both Ms Stanley and C. The Judge issued a minute dated 21 June 2019. The Judge referred to the various applications before the Court. She recorded that it was agreed that there needed to be a hearing in relation to the matter. She directed that a further conference be allocated for 9 September 2019 to progress matters. This gave Mr Ross the opportunity to file an affidavit in support of his applications and Ms Stanley the opportunity to file an affidavit in reply. The Judge then went on to comment that, at the conference on 9 September 2019, the Court would determine and consider matters including:
… whether or not s 95(2) and (3) of the Evidence Act [2006] is triggered and, if triggered, satisfied in terms of the need to appoint any other person including consideration of counsel to assist in relation to cross-examination issues of [Ms Stanley].
22 Douglas v Commissioner of Inland Revenue (2000) 19 NZTC 15,971 (HC) at [33].
[58] Mr Ross argued that this direction was unlawful. First, he asserted that he did not consent to any application in relation to s 95 of the Evidence Act being made orally. Secondly, he claimed that he was not heard on whether or not the application should be timetabled for hearing.
[59]Those assertions can be disposed of shortly.
[60] It is not clear that there was an oral application made by Ms Stanley or counsel for C requesting that orders under s 95 of the Evidence Act be considered. There is nothing in the minute to suggest this. Under s 95(2), a Judge can order that a party to a proceeding must not personally cross-examine a witness on his or her own initiative. It may be that the issue was raised by the Judge herself. Further, the direction made by the Judge was simply a case management direction, no doubt intended to give Mr Ross the opportunity to consider and prepare for a hearing into the s 95 issue. There was nothing unlawful in the Judge’s approach or in her directions. The application to review the direction of 21 June 2019 is dismissed.
Directions made on 9 September 2019
[61] The directions conference proceeded before Judge Pidwell on 9 September 2019. Mr Ross was present and he represented himself. The Judge recorded that the conference had been directed by Judge Parsons “specifically for the Court to refine any issues which were requiring an interlocutory hearing … and to consider whether s 95 [of the] Evidence Act … had been triggered”. The Judge went on to record what had occurred since 21 June 2019. She observed that there had been a number of further applications filed by Mr Ross – for a protection order under the Family Violence Act 2018, under s 125 of the Act, under s 212 of the District Court Act 2016, under ss 108 and 112 of the Crimes Act 1961, and to strike out some matters. She noted that three days after those applications were filed, further documents were filed by Mr Ross, essentially replacing the earlier applications and that on the following day, there was yet a further application filed under r 17 of the Family Court Rules. The Judge commented as follows:
This is a file which is spiralling out of control and the focus needs to be on resolution for [C].
She considered that it was appropriate to allocate a “long cause fixture” and have one Judge determine all matters. She so directed.
[62] The Judge also made a number of specific directions. Relevantly, she directed as follows:
As there are allegations of violence and there is a high level of conflict, I am satisfied that s 95 Evidence Act is triggered and therefore I appoint counsel to assist to conduct the cross-examination of [Ms Stanley] on behalf of [Mr Ross].
[63] Mr Ross told me that he was not given the opportunity to be heard in regard to this direction. This assertion was made for the first time in the course of the hearing. It was not made on oath and Mr Ross had not obtained a transcript of the hearing on 9 September 2019. I treat his assertion with considerable caution.
[64] Mr Ross submitted that there is “a high bar” before an order can be made appointing counsel to cross-examine on behalf of a litigant in person.23 He argued that he has been unduly prejudiced as a result of the order made and that it has precluded him from advancing his case in the way he considered was appropriate.
[65] In my view, no reviewable error has been established. Mr Ross was put on notice by Judge Parsons on 21 June 2019 that the application of s 95 of the Evidence Act was to be determined on 9 September 2019. He had ample time to prepare submissions in relation to the issue. He did not do so. Rather, he became distracted by other issues and he swamped the Family Court with multiple applications. While he now asserts that he was not heard in relation to the s 95 issue, he was present at the hearing before Judge Pidwell. There is nothing in the evidence to support the assertions he now makes. These are civil proceedings and the onus was on Mr Ross, as the applicant for judicial review, to establish his case on the balance of probabilities. He failed to do so. I am not prepared to assume that the Judge either refused or failed to hear from him at the hearing on 9 September 2019.
23 Relying on Rollins v Hobbs [2019] NZFC 7122 and Complaints Assessment Committee 1904 v Bright [2021] NZHC 1019.
[66] Further, and in any event, I would not have granted relief even if a reviewable error had been established.
(a)There were ample grounds on which the Judge could make the order under s 95(2). Under s 95(3), in considering whether or not to make an order the Court can consider the nature of the proceeding and the relationship of the prospective witness to the unrepresented party. In this case the proceedings involved parenting disputes. The parties had previously been in a relationship. The relationship had broken down and there had been long-running acrimonious litigation. There were allegations of violence and psychological abuse. There was a high level of conflict between the parties. It was plainly open to the Judge to conclude that the appointment of counsel to conduct the cross- examination of Ms Stanley was appropriate.
(b)It would have been preferable if the Judge had articulated her reasoning a little more fully – in particular, if she had commented on the mandatory considerations set out in s 95(4), namely the need to ensure the fairness of the proceeding, the need to minimise stress on the prospective witness Ms Stanley, and anything else that she thought was relevant. This could have been done very briefly. The Judge could have recorded the likelihood that Ms Stanley would be distressed and unsettled if she was cross-examined by Mr Ross and that her ability to present effective evidence might be compromised had an order not been made. These matters are obvious enough but it would have been helpful if they had been recorded.
(c)There was a right to appeal this decision with leave. Mr Ross did not seek leave. Rather, he commenced these review proceedings. I comment further in this regard below.
(d)There has been considerable delay in bringing the review proceedings.
(e)C’s interests compel the conclusion that the issue should not be reopened.
The application for review of the direction made on 9 September 2019 is dismissed.
Allegation of bias
[67] Mr Ross alleged that Judge Pidwell’s minute of 9 September 2019 evidences partiality or bias against him. He complained that the Judge dismissed applications he had made under the Crimes Act, but that she allowed an application made by Ms Stanley under s 213 of the District Court Act to remain live. He said that this application was ultimately found to be without jurisdiction. He says that it is “simply implausible that a Judge can disallow [his] applications for want for jurisdiction and allow an opposing party’s application that similarly lacked jurisdiction to proceed”.
[68] There is nothing in Mr Ross’ assertions. Application by a Judge of the law as he or she understands it to be cannot evidence bias.
[69] Under s 125 of the Act, the Family Court has no jurisdiction in respect of criminal proceedings. Mr Ross did not file copies of the various applications he made under the Crimes Act and I do not know what he sought, but prima facie it would appear that the Family Court would have had no jurisdiction to consider the matters raised. The Judge’s direction dismissing those applications would seem to be non- controversial and Mr Ross does not assert that she erred in this regard. That the Judge did not dismiss Ms Stanley’s application under s 213 of the District Court Act (when that application was later held to be made without jurisdiction) does not establish bias. It simply suggests that the Judge did not appreciate at the time that the Family Court had no jurisdiction to deal with Ms Stanley’s application. This is likely to have been because the want of jurisdiction was not brought to her attention.
[70] The test for apparent bias is well established. A Judge is disqualified if a fair- minded lay observer might reasonably apprehend that there is a real and not remote
possibility that the Judge might not bring an impartial mind to the resolution of the question the Judge is required to decide.24
[71] There is nothing in Judge Pidwell’s decision which could lead a fair-minded observer to reasonably apprehend that the Judge did not bring an impartial mind to the issues before her. There is no objective basis for the assertion made by Mr Ross. He can point to nothing which suggests that the Judge decided matters other than on their merits as she perceived them to be.
[72]The comments of the Supreme Court in Siemer v Heron25 are apposite.
[14] … in cases such as the present that there are strong institutional safeguards within the system. Following appointment, judges take an oath committing them to independence and impartiality in their judicial service. They promise to do right to all manner of people without fear or favour, affection or ill-will. Judges are also accustomed, on a daily basis, to putting aside their views of litigants appearing before them that are not relevant to the issues. This applies whether the litigants are self-represented or have counsel. Their commitment to proper exercise of the judicial function and their experience in discharging that commitment equip judges to administer justice impartially, without being distracted by extraneous events …
[73] Mr Ross’ assertion that the Judge was biased against him is both unfounded and unwarranted. His application for review in this regard is dismissed.
The judgments of 20 July 2020, 17 August 2020 and 29 October 2020
[74] Mr Ross’ sole complaint is that Judge Adams failed to apply s 95(6) of the Evidence Act because he did not direct counsel appointed to cross-examine Ms Stanley to ask questions which he, Mr Ross, wanted put to Ms Stanley.
[75] Mr Ross told me that he prepared two lists of questions he wanted counsel assisting to put to Ms Stanley – one list assuming particular answers and the other assuming other answers. He said that he gave the lists to counsel appointed to cross- examine Ms Stanley. He asserted that none of the questions were put.
24 Saxmere Co Ltd v Wool Disestablishment Board Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [96].
25 Siemer v Heron [2011] NZSC 116, [2012] 1 NZLR 293.
[76] Again, these factual assertions create some difficulty for the Court. They were not made in an affidavit. There is no transcript of the hearing before Judge Adams. The notes of evidence have not been reproduced in full. Counsel appointed has not been asked for his views and, insofar as I am aware, privilege was not waived. Again, I treat Mr Ross’ belated assertions with considerable scepticism. Nevertheless, as I observe below, there is some support for them in the materials that the Family Court collated and in Judge Adams’ judgment of 20 July 2020.
[77] Mr Ross claimed that as a result of counsel’s conduct, he was unable to force issues with Ms Stanley. He seemed to think that if the questions he prepared had been put, they would have caused Ms Stanley to lose control and expose what he sees as her true demeanour. Because her true demeanour was not exposed by “tough questions”, he asserted that his demeanour suffered and that this resulted in the Judge making adverse findings against him.
[78]Relevantly, s 95 of the Evidence Act provides as follows:
…
(5)A defendant or party to a proceeding who, under this section, is precluded from personally cross-examining a witness may have his or her questions put to the witness by—
(a)a lawyer engaged by the defendant; or
(b)if the defendant is unrepresented and fails or refuses to engage a lawyer for the purpose within a reasonable time specified by the Judge, a person appointed by the Judge for the purpose.
(6)In respect of each such question, the Judge may—
(a)allow the question to be put to the witness; or
(b)require the question to be put to the witness in a form rephrased by the Judge; or
(c)refuse to allow the question to be put to the witness.
[79] The provenance of s 95 and its application in the Family Court was recently discussed by Katz J in Irvine v Irvine.26 She noted that the plain and ordinary meaning of s 95(5), viewed in context, is that the appointee is acting as an intermediary or
26 Irvine v Irvine [2021] NZHC 2269.
mouthpiece for the unrepresented party, to enable the unrepresented party to communicate his or her questions to the witness. She considered that it is the unrepresented parties’ questions that are required to be put, and that this interpretation is supported by the wording of s 95(6),27 which gives the Judge the ultimate control over the questions proposed to be put and which the unrepresented party has directed counsel assisting to ask. She considered that the plain language of s 95, viewed in its statutory context, contemplates a process whereby the person appointed by the Judge simply communicates or repeats the unpresented parties’ questions to the witness.28
[80]I agree with the Judge’s analysis and adopt the same.
[81] While the factual assertions which I have recorded above were not directly before the Court, as I noted, there is some material in the bundle and in the judgment which assists.
[82] First, during the course of the hearing, Mr Ross prepared a statement. That statement was prepared for the Judge and it was incorporated into the notes of evidence taken at the hearing. Inter alia, Mr Ross in the statement asserted as follows:
I feel I have been totally let down by counsel to assist. Mr Gluestein didn’t ask one single question he was instructed to cross-examine.
[83] Secondly, there is support for Mr Ross’ factual decisions in the judgment. The Judge noted as follows:
[11] Although, in closing, [Mr Ross] was critical of the performance of Mr Gluestein, counsel appointed to cross-examine [Ms Stanley] on behalf of [Mr Ross], I thought Mr Gluestein performed soundly. It is the role of such counsel to ensure the case is well-put while avoiding those inter-personal awkwardness’s (sic) that commonly arise when unhappy communication modes are replicated in court, thereby distracting from the purpose of the hearing. Mr Gluestein effectively reinforced the even mix of parenting in this case, despite differing styles. From that base, he established that [C] has a positive relationship with both parents. I find accordingly.
[84] It appears that the “tough” questions Mr Ross wanted counsel assisting to put to Ms Stanley were not put. It also appears from the judgment that the Judge
27 At [23]-[24].
28 At [26].
misunderstood the role of counsel appointed to undertake cross-examination under s
95. It was not counsel’s role to ensure that the case was well put while avoiding inter- personal awkwardness. The role of counsel appointed, pursuant to s 95(5), was limited to putting such of Mr Ross’ questions as were allowed by the Judge to Ms Stanley.
[85] In my view, the Judge erred in this regard. He failed to appreciate the ambit of s 95 and the constraints imposed by s 95(5). This is a reviewable error of law.
[86] I am not however persuaded that it is appropriate to grant relief to Mr Ross. I have reached this conclusion for the following reasons:
(a)I do not know what questions Mr Ross wanted put to Ms Stanley. The lists of questions have not been put in evidence by Mr Ross. Notwithstanding the limited role of counsel appointed, it may have been that the Judge would either have required that the questions be rephrased or refused to allow them to be put to Ms Stanley pursuant to s 95(6);
(b)The Judge broadly concluded that both Ms Stanley and Mr Ross were capable parents. He did not consider that C was unsafe in Mr Ross’ care. Rather, he considered that Mr Ross evinced a strong need to be in control, as demonstrated by the various documents he had filed over the preceding decade, which the Judge considered showed a “pervading lack of perspective”;
(c)While the Judge’s findings were adverse to Mr Ross, it is not apparent from his judgment that those findings were based on the views he formed of Ms Stanley. His focus throughout his judgment was on the welfare and best interests of C. This was entirely appropriate and in accordance with the statutory mandate;
(d)The findings the Judge made adverse to Mr Ross were based on the Judge’s assessment of the materials filed with the Family Court by Mr Ross, including his submissions and his evidence, as well as from
independent sources, in particular, a report prepared for the Court by a psychologist, Dr Calvert. It is not clear that, if Mr Ross’ questions had been put to Ms Stanley, this would have altered the Judge’s view of Mr Ross;
(e)Setting the judgment aside and sending the matter back for rehearing would not be in C’s best interests;
(f)The Judge’s substantive decisions were open to appeal pursuant to s 143 of the Act. Those appeal rights were appropriate to protect the interests Mr Ross claimed. Where wide-ranging appeal rights are available, they ought to be pursued rather than an application made for judicial review.29
[87] Accordingly, I find that there was a reviewable error, but I decline, in the exercise of my discretion, to order relief in favour of Mr Ross.
Costs
[88]Mr Ross has failed in his application for review.
[89] Ms Jerebine, in her written submissions, sought costs on a 2B basis together with usual disbursements with an order to be made under s 178(2)(a) of the Senior Courts Act 2016.
[90]Mr Ross did not respond to this submission before me.
[91] If Mr Ross accepts that costs should be fixed on a 2B basis together with usual disbursements, it should be possible for Mr Ross and Ms Jerebine to reach agreement on quantum. If they are unable to do so, I direct as follows:
29 Wislang v Medical Council of New Zealand [2002] NZAR 573 (CA); Ortmann v United States of America [2020] NZSC 120 at [572]; Tannadyce Investments Ltd v Commissioner of Inland Revenue [2011] NZSC 158; Bulk Gas Users Group v Attorney-General [1983] NZLR 129 (CA) at 136; Fraser v Robertson [1991] 3 NZLR 257 (CA) at 260; Bulk Gas Users Group v Attorney- General [1983] NZLR 129 (CA) at 136; Auckland Acclimatisation Society Inc v Sutton Holdings Ltd [1985] 2 NZLR 94 (CA) at 103.
(a)any memorandum seeking costs and disbursements is to be filed and served within 10 working days of the date of release of this judgment;
(b)any memorandum in reply is to be filed and served within a further 10 working days;
(c)memoranda are not to exceed five pages.
I will then deal with the issue of costs and disbursements on the papers, unless I require the assistance of Mr Ross and Ms Jerebine.
Wylie J
Solicitors/counsel:
S P Jerebine, Auckland M J Flannagan, Auckland Copy to:
Applicant
5
8
0