S v Family Court at Manukau

[2021] NZHC 3002

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-001498

[2021] NZHC 3002

UNDER

the Judicial Review Procedure Act 2016 and Parts 5 and 30 of the High Court Rules

IN THE MATTER OF

decisions under the Care of Children Act 2004

BETWEEN

S

Applicant

AND

THE FAMILY COURT AT MANUKAU

First Respondent

M

Second Respondent

Hearing:

3 November 2021

Appearances:

S in person

No appearance for or by First and Second Respondents – both abiding the decision of the Court

L F Soljan, counsel assisting

Judgment:

8 November 2021

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 8 November 2021 at 12.00 noon

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:

L F Soljan, Auckland

Copy to:
The Applicant, S

S v FAMILY COURT AT MANUKAU [2021] NZHC 3002 [8 November 2021]

Introduction

[1]    S and his former partner, M, are involved in long-running parenting proceedings under the Care of Children Act 2004 in relation to their son, A.

[2]    S and M met in 2008 and they began living together shortly thereafter. A was born in 2013. The relationship between S and M gradually deteriorated and there were repeated conflicts to which A was exposed. In October 2018, matters came to a head when there was an incident at the family home. The police were called. Shortly thereafter, M applied, without notice, for both an interim parenting order and a temporary protection order. The Family Court declined to make an interim parenting order but did grant a temporary protection order. Since this order was made there have been a large number of further applications relating to the parenting of A and many affidavits filed. There has been a separate family violence hearing.

[3]    An aspect of the ongoing dispute came before Judge Mahon in the Family Court at Manukau in July 2019. He declared the file to be “complex” and as a result he has case managed it since. Concern has been expressed by the Judge for the welfare of A on more than one occasion. He has noted that A is being continually exposed to his parents’ disputes and to all the rancour and bitterness they entail.

The s 133 report

[4]    On 28 October 2020, Judge Mahon directed that a report be obtained in relation to A pursuant to s 133 of the Care of Children Act 2004 (the Act).1 The report was requested on the standard brief contained in the section. In addition, the report writer was requested to ascertain A’s views, comment on them and the influences on them given his age, personality and stage of development. The report was intended to provide expert opinion evidence to assist the Court in evaluating the welfare and best interests of A.

[5]    Dr Sarah Calvert was appointed to prepare the report. Inter alia, she interviewed A, observed him the company of both parents, spoke to people at his

1      M v S [2020] NZFC 9398 at [80].

school, perused all relevant documents (including all affidavits filed by S and M) and interviewed both parents. She provided her opinion in relation to the arrangements for A’s care. She reviewed his relationship with both S and M, his attachment to each of his parents, the effect on A of each parent’s parenting skills, the effect on A of his parents’ inability to cooperate with regard to his parenting and the advantages and disadvantages for him of the various available care options. Dr Calvert recommended that counsel appointed to represent A should discuss the general issues raised in the report with him. She further recommended that, should A as an adult wish to read the report, he should be able to do so, because it is about him and because it may be important in aiding his understanding of himself.

[6]The report was filed with the Court on 9 July 2021.

[7]    On 12 July 2021, the Registrar, as required by s 133 of the Act, released the report to A’s lawyer and to counsel for M. The Registrar sought directions from Judge Mahon as to whether it was appropriate to release the report directly to S who by this stage was representing himself.

[8]On 13 July 2021, Judge Mahon issued directions:2

(a)appointing counsel (Ross France) to assist S; and

(b)directing that S and Mr  France  meet  to  read  the  report  and  that Mr France should answer any questions S might have about the report.

[9]    On 14 July 2021, S filed a memorandum with the Court requesting that the reports should be released directly to him. He advised the Court that he was aware of the prohibition on the publication of Family Court documents as set out in ss 11B and 11C of the Family Courts Act 1980. He said that he had not previously breached these provisions. He referred the Court to s 134(1)(a) of the Act and submitted that the obligation to disclose is consistent with ss 14 and 27 of the New Zealand Bill of Rights Act 1990. He argued that he needed unimpeded access to the report and that without

2      M v S FC Manukau FAM-2018-055-169, 13 July 2021 (memorandum and direction).

it he is prejudiced in his ability to represent himself in the ongoing Family Court proceedings.

[10]   On 16 July 2021, Judge Mahon issued a minute responding to S’s memorandum.3 In summary, the Judge noted that:

(a)S had the same access to the report as M;

(b)he had appointed Mr France to facilitate S’s reading of the report to assist S, and not for the purpose of imposing a lawyer on him;

(c)S was not unfairly prejudiced by his directions;

(d)the restriction on either S or M retaining a copy of the report was appropriate, because of concerns he had about the extent to which each of them had engaged A in their parenting dispute and because of S’s previous distribution of confidential information to third parties;

(e)Mr France had reported that S had contacted him several times and been verbally abusive. As a result, Mr France was given leave to withdraw and he was replaced with another lawyer to assist – Kit Goldsbury;

(f)S could attend at Mr Goldsbury’s office on as many occasions as he wished and if he had any legal questions arising from the report,     Mr Goldsbury was to assist him with those questions;

(g)the report was to be made available to S to further read at the Manukau Family Court Registry on the day on which a directions conference was due to be heard.

[11]   On 19 July 2021, S filed his application seeking to judicially review Judge Mahon’s directions.

3      M v S FC Manukau FAM-2018-055-169, minute of 16 July 2021.

[12]   On 30 July 2021, Judge Mahon convened a conference to progress the case through to final hearing. Following a late proposal by M, the conference was adjourned to 9 August 2021 to give S time to consider his position. Inter alia, the Judge directed both S and M to file any affidavit evidence in reply to Dr Calvert’s report that they wanted to put before the Court.4

[13]   On 20 August 2021, S filed a memorandum asking the Judge to revisit his directions in relation to the release of the report. He argued that he was unable to complete his affidavit for the substantive hearing unless he had free access to the report. He also asserted that there was no proper evidential basis for the Judge’s concerns.

[14]   On 25 August 2021, Judge Mahon released a memorandum responding to S’s request.5 He noted that Mr Goldsbury had reported that S had spent approximately four hours in his offices reading the report and seeking detailed advice in relation to it. The Judge recorded S’s argument that there was no proper evidential basis for his directions. He said that S was wrong in that assertion. The Judge noted that S had admitted breaches of confidentiality of Family Court proceedings on several occasions. He listed the following:

(a)S admitted in 2019 that he had disclosed information regarding the family violence case to M’s uncle, who is also a lawyer, and to others;

(b)in 2020, S admitted that he had sent material on the parenting case, identifying M, to the group Families 4 Justice;

(c)S took an unauthorised recording of a hearing;

(d)in a family violence hearing before Judge Southwick, S admitted sending confidential information identifying M to a member of Families 4 Justice and to the group Kidz Need Dadz; and

4      M v S FC Manukau FAM-2018-055-169, minute of 10 August 2021.

5      M v S FC Manukau FAM 2018-055-169, memorandum of 25 August 21.

(e)S had repeatedly discussed “adult issues” aired in the case with A in an inappropriate manner.

The Judge noted that s 134 of the Act was passed before the internet age. He noted that a PDF of any report once published on the internet would be permanently available online. He considered that the risk of this occurring justified his earlier directions. He declined S’s request to amend his directions but did amend the timetable to address the effect on both S and M of the Covid-19 lockdown restrictions.

[15]   S has applied in other judicial review proceedings seeking to get a copy of the report to this Court. His applications have been declined.6

The judicial review application

[16]   S asserted in his statement of claim that the Judge acted unlawfully by not releasing the report to him. He said release was required by s 134 of the Act. He also alleged that the Judge “made allegations against [him] which are false and have no evidentiary basis”. He asserted that to rely on these “false allegations” to justify restricting access to an expert report was unlawful and a breach of natural justice. He argued not only that the Judge’s decision was unreasonable, but that the Judge acted for an “improper purpose”. Relevantly, he sought a declaration as to the meaning of s 134(1) and an order requiring that the report be released to him so that he can study it, if need be quote from it and ask questions in relation to it. Various other orders were sought but it is not necessary to set those out for present purposes.

[17]   The first respondent – the Family Court at Manukau – advised that it will abide the decision of the Court. So did the second respondent, M.

[18]   S filed submissions in support of his application, as did Ms Soljan as counsel assisting.

[19]   S’s submissions largely mirrored his statement of claim. Broadly, he argued that the Judge’s direction breached the rules of natural justice protected by ss 14 and

6      S v Family Court at Manukau HC Auckland CIV-2020-404-1077, minute of Venning J, 9 June 2021. S has sought leave to appeal this ruling: See minute of Walker J, 28 October 2021.

27 of the New Zealand Bill of Rights Act. He also argued that the direction was unlawful because there was no proper evidential foundation for it.

[20]   Ms Soljan took no position on whether the judicial review should succeed or not; rather she confined herself to bringing various matters to my attention. Although S criticised parts of her memorandum, there was, in my view, no basis for that criticism. Ms Soljan properly sought to assist the Court by referring me to relevant materials. Her assistance was helpful because S had not filed a bundle of materials. In the event, I was able to find many of the materials I required in a bundle filed in support of another application for review S brought in relation to his parenting dispute with M – proceedings CIV-2020-404-1077. S initially argued that I should not consider this bundle but, in discussion, accepted that it was appropriate for me to do so.

Analysis

Relevant law

[21]   Dr Calvert’s report was obtained pursuant to s 133 of the Act. It is the property of the Court and Dr Calvert is the Court’s witness.7

[22]   Distribution of such reports to the parties is governed by s 134 of the Act.8 Relevantly, it provides as follows:

134     Distribution, etc, of reports under sections 132 and 133

(1)The Registrar of the court must copy a report under section 132 or

section 133 (the report)—

7      Care of Children Act 2004, s 134(7).

8      Persons other than lawyers and unrepresented parties can seek access to such reports: Family Court Rules 2002, r 429. There is authority that, in some circumstances, a s 133 report can be disclosed in other proceedings, for example, criminal proceedings: R v District Court, Kaitaia (1994) 12 FRNZ 225, [1994] NZFLR 558 (HC); R v N FC Auckland FAM-2007-004-2051, 11 June 2008; Poynter v Bastion [2013] NZFC 3448. Where a parent has been directed to attend a parenting or other programme, a Family Court Judge can direct that a s 133 report be released to the programme providers to assist them in their therapeutic role: Bailey v Lyle [2016] NZFC 3764 at [199]. Copies of such reports cannot be given to the Legal Services Commissioner unless application is made pursuant to the Family Court Rules and the Family Court so directs: Powell v Duncan [1996] NZFLR 721, [1996] 14 FRNZ 470.

(a)to the lawyer acting for each party to the proceedings or, subject to subsection (3), if a party has no lawyer acting for that party, to that party; and

(b)to a lawyer appointed to act for a child who is the subject of the proceedings.

(2)If the court orders a lawyer referred to in subsection (1)(a) not to give or show the report to the person for whom the lawyer is acting, the lawyer must comply with the order.

(3)If a party has no lawyer acting for that party and the court is satisfied that information in the report would, if provided directly to that party, place the child concerned or another person at risk of physical abuse, sexual abuse, or psychological abuse, the court may—

(a)order that the report not be copied to that party under subsection (1)(a); and

(b)appoint counsel to assist the court under section 130 for the purpose of explaining the contents of the report to that party.

(4)Before the report is copied to a lawyer under subsection (1)(b), the court must consider whether the report may be given or shown to the child for whom the lawyer is acting.

(5)A lawyer referred to in subsection (1)(b) may give or show the report to the child for whom the lawyer is acting only if the court so orders, but in every case the lawyer must explain to the child the purpose and contents of the report, unless the lawyer considers that to do so would be contrary to the welfare and best interests of the child.

(6)A party to the proceedings, or a lawyer appointed to act for a child who is the subject of the proceedings, may present evidence on any matter referred to in the report.

…

[23]   As can be seen, the section governs the distribution to the parties of any report obtained by the Court under ss 132 and 133. The Registrar must copy such report to the lawyer acting for each party to the proceeding or, if a party has no lawyer, then to that party, subject however to s 134(3). The Registrar must also copy any such report to any lawyer appointed to act for a child. Parties to the proceedings and any lawyer appointed have the right to present evidence on any matter referred to in the report.

[24]   Notwithstanding the right to present evidence on the report, the Court can direct that a party without a lawyer not receive a copy of such report if it is satisfied that providing the report directly to that party would place the child concerned or

another person at risk of physical, sexual or psychological abuse. The Court can also impose other restrictions on the use that can be made of the report by lawyers representing the parties. It can direct that a lawyer not give or show the report to his or her client. Before a report is copied to a lawyer appointed to act for the child, the Court must consider whether the report may be given or shown directly to the child for whom the lawyer is acting. Consequently, a lawyer appointed to act for a child can only give the report to a child for whom he or she is acting if the Court so orders.

[25]   There is a distinct emphasis in the section on the interests of the child. This is consistent with the first and paramount consideration mandated by the Act – namely the welfare and best interests of the child concerned in his or her particular circumstances.9

[26]   As has been noted by this Court, two principles can be extracted from the statutory provisions:10

[52]     …

(1)It is the court that controls the obtaining of s 132 or s 133 reports in order to properly determine applications relating to the day-to-day care and upbringing of a child and to regulate proceedings so as to ensure they are conducted in a way that promotes the welfare and best interests of children who are the subject of the proceeding. This will usually require the proceeding to be conducted fairly, expeditiously and as inexpensively as possible.

(2)With some exceptions, it is the court that controls the distribution of reports obtained under ss 132 and 133 of the Care of Children Act. Lawyers acting for a party and a lawyer appointed to act for a child have unfettered access to s 132 and s 133 reports. The right of parties and children to receive s 132 and s 133 reports is subject to the court being satisfied that releasing those reports would not create a risk of physical, sexual or psychological abuse to a child or young person who is the subject of the proceeding, or any other person, and that sharing a s 132 or a s 133 report with the child would not be contrary to the welfare and best interests of that child or young person.

9      Care of Children Act 2004, s 4(1).

10     Simes v Legal Services Commissioner [2017] NZHC 2331.

[27]   Given that any report is likely to be taken into account by the Court in disposing of any case before it, the principles of natural justice, as reinforced by s 27 of the New Zealand Bill of Rights Act, suggest that the power to order that a report not be shown by a lawyer to a party, or that a report not be copied to an unrepresented litigant, should be exercised with caution.

[28]The Family Court has commented as follows:11

[4] Section 134 Care of Children Act 2004 addresses the difficulty when information is contained in a report and which might present such a level of distress as to place the child concerned, or some other person at risk of physical or psychological harm. It attempts to create a balance between observing the rules of natural justice (and in particular the audi alterem partem rule) and the Court’s obligation to apply the Act in such a way which treats the welfare and best interests of the child as the first and paramount consideration, the fundamental requirement of the statute enshrined in s 4.

…

[6]Salient features of the section are that :

a)the Court presumptively is obliged to provide a copy of the report to each party, or if that party has a lawyer, then to that lawyer;

b)the Court may order a party’s lawyer not to give or show the report to that party;

c)if there is a risk that providing information directly to a unrepresented party would place the child or someone else at risk of harm, the Court may prohibit a copy being supplied to that party, but must then appoint counsel to assist for the purpose of explaining the contents of the report to that party.

[7]The clear policy of the Statute is that each party is entitled to know, at least in general, the information upon which a Court may make a decision concerning the children who are the subject of the proceedings.

I agree with these observations.

[29]   Commentators have suggested that situations which might justify restricting access to a report include:

11     J v P FC New Plymouth FAM-2007-043-826, 11 August 2009.

(a)situations where the Court is concerned that seeing the report might provoke a party to physically or emotionally abuse the child, the other party or the report writer; and

(b)situations where, given the paramouncy principle in s 4 of the Act and the child safety principle in s 5(e), disclosure of the content of a report to the party might be contrary to the child’s best interests or might endanger the child’s safety.12

[30]   The publication of reports obtained pursuant to ss 132 and 133 are also covered by the statutory prohibition of publication contained in ss 11B to 11D of the Family Courts Act 1980,13 and the risk of publication in contravention of s 11B could well be a relevant consideration for the Court in appropriate cases where it is determining whether there is a risk which justifies an order under s 134(3).

[31]   I agree with Ms Soljan that, when considering whether to make a direction pursuant to s 134(3), the Court is concerned with risks and not certainties.

[32]I turn to the instant case against this background.

The process followed by the Judge

[33]   I have some reservations about the process followed by the Judge in the present case.

[34]   He did not hear from S before making his initial direction on 13 July 2021 (see para [8] above). Further, he did not initially give any reasons for his direction. Since then, the Judge has responded to memoranda filed by S.

[35]   In my view, it would have been preferable if the Judge had invited submissions from S on whether or not the report should be released to him prior to making his directions. If necessary, the Judge should have convened a short telephone conference or even a face-to-face hearing to consider any comments that S might have had.

12     Family Law — Child Law (online ed, Thomson Reuters) at [CC134.04].

13     Care of Children Act 2004, s 139.

[36]   A process where a Judge ends up justifying his decision in response to memoranda filed after the decision is made is not satisfactory. Normally, this conclusion would result in the impugned decision being set aside and in the matter being sent back to the Family Court to reconsider. However, the Court has a discretion whether or not to make such orders on an application for review. Here, the Judge has, albeit belatedly, identified the risks which led to his directions under s 134(3). S has engaged with the Judge’s assessment in his submissions. Accordingly, I go on to consider whether there was proper justification for the directions made by the Judge.

The exercise of the s 134(3) power by the Judge

[37]   The Judge considered that S had admitted to breaches of confidentiality with the Family Court parenting proceedings on several occasions. Although S contended otherwise, in my judgment, if there were such breaches, the same were clearly relevant to whether or not to exercise the power conferred by s 134(3). I consider each of the matters identified by the Judge in turn.

[38]   First, the Judge said that S had admitted in 2019 that he had disclosed information regarding the family violence case to M’s uncle.

[39]   Regrettably, the notes of evidence of that hearing are not available but, in a decision dated 14 August 2019, the Judge recorded as follows:14

[S] agreed that he tried to indirectly communicate with [M] by contacting her uncle who is a lawyer in the Waikato. He said that after talking to him, [M’s] uncle agreed to contact her. [S] hoped this communication would assist in resolving the issues between the parties. This action was a breach of the temporary protection order.

[40]   In a further judgment dated 28 October 2020,15 the Judge again recorded as follows:

Throughout the period I have been involved in this case, [S] has continued to exhibit a “sense of entitlement” over decisions affecting [A’s] care. In the March 2009 hearings [S] apologised to the Court about communicating with [M’s] uncle and others about the dispute … He again communicated with others about this case after the April 2020 judgment was released, despite

14     M v S [2019] NZFC 5968 at [27].

15     M v S [2020] NZFC 9398.

being aware that he was in breach of his obligations and acting in the same manner for which he was criticised last year.

[41]   In his submissions before me and in the unsigned affidavit filed in support of his application for review, S did not deny the conversation with M’s uncle but took the position that he was justified in having the conversation, as it was “what normal people in families do”.

[42]   There does not appear to be any dispute that the conversation took place or that S was subject to a protection order at the time that prohibited him from engaging with third parties in an endeavour to make indirect contact with M. It seems clear that S did breach the Court’s orders and this is relevant to the exercise of the power conferred by s 134(3). If a party has shown a disregard of Court orders, that can go to the risk of abuse if the report is made available.

[43]   Secondly, the Judge said that M had admitted that he had sent material on the parenting case identifying M to Families 4 Justice.

[44]   On 10 November 2019, S sent an email to a Mr Evans, who was involved with Families 4 Justice and Kids Need Dadz. A copy of the email is contained in the bundle to which I had access. The email refers to M by name, describes actions in which it is alleged she was involved, says that she is a criminal and claims that others have described her as being mentally ill.

[45]   M gave evidence at an earlier hearing that S had sent the email to a number of people. In cross-examination at the same hearing, S acknowledged that he had sent the email to five or so people. In the family violence proceedings the issue was raised again. S was unable to recollect exactly how many people he had sent it to, but estimated that it was between five and eight.

[46]   M also gave evidence that on 4 August 2020, S sent out another group email to the “League of Fathers”.

[47]   S does not deny sending the 10 November 2019 email to “some friends”, including Mr Evans, who he described as the chief executive officer of “FM”. Rather,

his  submission  was  that  M’s  conduct  was  unlawful and outrageous.    It was his submission there was no “gagging order” preventing him writing an email to others.

[48]   In my view, that S disseminated personal and potentially defamatory information about M in the past is a relevant consideration in assessing whether making available a copy of the report would place M at risk of psychological abuse.

[49]   Thirdly, the Judge commented that S had taken an unauthorised recording of a hearing.

[50]   S acknowledges that he took a covert recording of a Family Court hearing in February 2020. It was his argument that he was justified in doing so. Indeed, he sought to have a copy of this recording (and/or a transcript of it) admitted into evidence in his other judicial review proceedings. That application was declined by Downs J.16 The Judge noted that the making of an audio recording of proceedings is a matter within the control of the trial Judge and that such recordings cannot be made without first obtaining the permission of the Judge. No such permission was obtained.

[51]   Fourthly, Judge Mahon noted that, in the family violence hearing before Judge Southwick, S admitted sending confidential information identifying M to members of Families 4 Justice and Kidz Need Dadz. I have already commented on this issue above.

[52]   Finally, the Judge observed that S had repeatedly discussed “adult issues” aired in the case with A in an inappropriate manner.

[53]   The interim parenting order dated 8 August 2019 imposed conditions on both S and M as to how they were to protect A from their conflicts. There were conditions requiring that neither parent discuss with A the Court proceedings or the meetings with lawyers, and that neither parent involve A in, or expose him to, discussions about changes to his care arrangements or invite his views on the same.

16     S v Family Court at Manukau [2021] NZHC 259.

[54]   Notwithstanding this order, S acknowledged in evidence given in the one of the Family Court hearings that, on Christmas Day 2018, he told A that he had been put in jail. M also gave evidence of various inappropriate discussions between A and S, which had been relayed to her by A. In addition, in February 2020, the lawyer for A filed a report expressing concern that S had exposed A to the adult conflict and noting that he seemed to have no insight as to how his actions might affect A.

[55]   In February 2020, S prepared a “Report on [A]”, detailing a conversation he had with A in which he discussed the care arrangements in some detail with him. In a judgment given on 30 April 2020,17 Judge Mahon set out detail from the report and commented as follows:

… the engagement [S] admits he had with [A] on the last weekend of face to face contact, both as acknowledged in his report and by the fact that [A] rang his mother to ask to stay an extra night earlier that day, is indicative of [S’s] lack of insight into the effect of the content and manner of his discussions on his son. It is also a blatant disregard for the directions of the Court.

[56]   S’s lack of insight into the impact of his behaviour on A is, in my view, the primary and paramount consideration in this case because it impacts directly on A. It raises directly his welfare and best interests. It is noteworthy that Dr Calvert considered that A should only see the report when he is an adult, and even then, only if he wishes to do so (see above at [5]).

The discretion

[57]   While I do not consider that the process was ideal, I am not persuaded that Judge Mahon erred when he made his directions under s 134(3) of the Act. There was ample material on which the Judge could properly conclude that, if Dr Calvert’s report is provided directly to S, this would place A and/or M at risk of psychological abuse.

[58]There are other factors going to the exercise of the discretion.

(a)S has not been deprived from having access to the report. He has had ample opportunity to read it, to seek advice in relation to it and to copy

17     M v S [2020] NZFC 2718 at [14].

those parts of it he requires both for the purposes of preparing his own affidavit and for representing himself at the hearing. Further opportunities remain open to him. S is in the same position as M. She does not have her own copy of the report, but is only able to access it via her counsel;

(b)there is a need to preserve the integrity of the Family Court’s processes. If it were to come to A’s attention that a copy of the report had been given to S, he might lose faith in the professionals dealing with his parenting arrangements. He (and others) might be discouraged from speaking freely and frankly to counsel appointed and to report writers;18 and

(c)the Judge’s directions were an interlocutory order. Such orders can be appealed to this Court, provided the leave of the Family Court is first obtained.19 I can see no good reason why leave was not sought.

Result

[59]For the reasons I have set out, the application for review is declined.

[60]Costs are not in issue.

Wylie J

18     R v H [2000] NZFLR 455 (CA); Poynter v Bastion, above n 8.

19     Care of Children Act 2004, s 143(3).