Short v Short

[2021] NZHC 3404

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000279

[2021] NZHC 3404

BETWEEN

SHORT

Plaintiff

AND

SHORT

Defendant

Hearing:	On the papers
Judgment:	13 December 2021

JUDGMENT OF NATION J

[1]    A journalist with Stuff has applied for access to documents under the Senior Courts (Access to Court Documents) Rules 2017 (the Rules) relating to these proceedings, referred to in an anonymised judgment as Short v Short. The anonymised judgment is publicly available. I assume Stuff have it.

[2]    The request was for access to “submissions and any minutes on the file”. The journalist said they wish to look at the documents because:

… we believe this case is of public interest, in that it concerns the way the court treats victims of domestic violence, and in this case psychological violence.

In the interests of open justice, we seek to report the grounds for appeal and the arguments made in the submissions, as the eyes and ears of the public.

We will have regard for the victim’s interests and abide by Family Court reporting rules, given this is an appeal from the Family Court.

SHORT v SHORT [2021] NZHC 3404 [13 December 2021]

[3]    The application was referred to counsel for the parties who appeared on the hearing of the appeal in the High Court. Counsel appointed to assist the Court, Mr Eason, said he had no objection to the media application.

[4]    Mr Wilding QC, who appeared as counsel for the child, said he had no objection to release of the documents sought for the purpose stated in the journalist’s application but, in the interests of protecting the child, submitted there ought to be conditions:

1.  The child is not named nor identified or identifiable, directly or indirectly, in any report of, including any article about, the proceedings.

2.   As part of that, the material is not further disseminated by Ms Johnston without the Court’s consent, except to any person necessary for the purpose of the report, for example any assisting academic and then only to the extent necessary.

3.    If dissemination of the material to another person is necessary for the purpose of the report then:

(a)   Ms Johnston must in advance advise the Court, for its records and in the event of any breach, of the name, address and occupation of that person;

(b)   that person may not further disseminate the material or any part of it without first obtaining the consent of the Court;

(c)   that person may not make any report of the material or any part of it without first obtaining the consent of the Court;

4.  The material must be kept securely by Ms Johnston and any person whose access is necessary for the purpose of the report, until disposed of by secure means when it is no longer needed.

5.  Ms Johnson is to ensure that any person to whom it is necessary for her to disclose the material or any part of it is aware of and agrees to these conditions.

6.  These conditions are not intended to prevent Ms Johnson from publishing in a report detail or extracts from the material, provided that report meets condition 1, protecting the identity of the child.

[5]    Counsel for the mother said she consents to the release of the documents as requested on the conditions proposed by Mr Wilding. With reference to the submissions made by Mr Wilding in the High Court, the mother’s counsel pointed out those submissions attached “a schedule of family violence and refer to specific sensitive information about [the mother] including names of previous abusers”. The mother sought a further condition/direction that any identifying information about the

applicant, respondent, child and her previous abusers, including names and dates of birth, are kept confidential.

[6]    Having been advised of the request by Stuff, the father responded directly to Stuff indicating that he had no objection to the application. He also provided Stuff with a submission he had filed in the Court of Appeal and made detailed arguments as to how he considered he had been dealt with unfairly throughout the history of these proceedings. In responding directly to the journalist, the father identified the parties and thus his child in breach of the suppression order made in the High Court judgments on appeal. He also made statements about the mother as to matters which, in the circumstances of this case, ought not to have been conveyed to the media.

Applicable law

[7]    Access to court documents is governed by the Rules. Under r 11, if a person is not entitled to access a document relating to a proceeding as of right1 they may apply to the court for access.

[8]Rule 12 sets out the matters that I must consider in assessing an application:

12   Matters to be considered

In determining a request for access under rule 11, the Judge must consider the nature of, and the reasons given for, the request and take into account each of the following matters that is relevant to the request or any objection to the request:

(a)   the orderly and fair administration of justice:

(b)   the right of a defendant in a criminal proceeding to a fair trial:

(c)   the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice:

(d)   the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person:

(e)   the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions):

1      The rights are set out in rr 8 and 9 of the Senior Courts (Access to Court Documents) Rules 2017.

(f)   the freedom to seek, receive, and impart information:

(g)   whether a document to which the request relates is subject to any restriction under rule 7:

(h)   any other matter that the Judge thinks appropriate.

[9]    Whether the document relates to a proceeding under an enactment listed in r 7 is a mandatory consideration. Relevantly, r 7 provides:

7     Restriction on access in proceedings under certain enactments

(1)   A person may not access a document, a court file, or any judgment or order that relates to a proceeding brought under the enactments listed in subclause (2) unless—

(a)   the Judge is satisfied that there is good reason for permitting access; or

(b)the person is a party to that proceeding.

(2)   The enactments are—

…

(d)   Care of Children Act 2004

…

(g)   Family Violence Act 2018

[10]   The proceedings related to both the Care of Children Act and the Family Violence Act. Under r 12(d), I must give due consideration to the confidentiality and privacy interests of the child. In addition, given the proceeding relate in part to the Care of Children Act, I consider, in the circumstances of this application, the paramount consideration must be the welfare and best interests of the child who is subject to these proceedings.

[11]   The child has not benefited from the intense conflict between the parents over arrangements for the care and/or contact of the child. That conflict has been the subject of various orders.

[12]   One matter over which there has been litigation was the mother’s application for a protection order. It was the subject of a detailed judgment in the Family Court,

the lengthy judgment from the High Court (39 pages),2 an application for leave to appeal that judgment to the Court of Appeal and the Court of Appeal’s judgment refusing leave.3

[13]   The submissions of counsel filed in the High Court include detailed personal information about the parties, particularly the mother which she is understandably sensitive about. One of the grounds on which she alleged psychological abuse was that this information was being put before the Court. Were Stuff to have access to that information, it would now be before someone outside the Court.

[14]   Through allowing access to the documents, the Court would be allowing disclosure of information identifying the parents and thus the child who is the subject of the proceedings in ways that the Court recognised should not be allowed when anonymising the judgment on appeal and ensuring there was no information in that judgment through which the parties or the child could be identified.

[15]   I am also concerned that, potentially, all parties to the proceedings will see the provision of the material sought as an opportunity to, again, try and persuade someone else to accept the correctness of their view as to the unfairness of the way the courts have dealt with matters. In that way, allowing access to the documents is likely to promote ongoing conflict between the parties in ways that will be, again, destructive for the child whose interests I must consider.

[16]   I also do not consider that access to the submissions of the parties is necessary for the media to be informed as to the issues which the journalist wishes to be informed on and to be able to report. The judgment from the High Court provides, in some detail, information as to the background of proceedings in the Family Court, relevant decisions made there, and summarises, again in some detail, the submissions made by the parties. The judgment sets out in detail how the Judge in the Family Court dealt with the issues put before him. It is apparent from the judgment on appeal how the High Court dealt with the issues.

2      S v S [2021] NZHC 1874.

3      S v S [2021] NZCA 667.

[17]The application for access to documents is accordingly denied.