Simpson v Family Court at Tauranga

[2023] NZHC 1574

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://www.justice.govt.nz/family/about/restriction-on-publishing- judgments/

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2022-470-122

[2023] NZHC 1574

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER

of the Care of Children Act 2004

BETWEEN

SIMPSON

Applicant

AND

FAMILY COURT AT TAURANGA

First Respondent

HAMILTON

Second Respondent

Judgment:

(On the papers)

23 June 2023

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Friday, 23 June 2023 at 11:30 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Law (K Laurenson), Wellington K3 Legal Ltd (A Brown), Auckland

Copy to:
Mr Simpson

SIMPSON v FAMILY COURT AT TAURANGA [2023] NZHC 1574 [23 June 2023]

[1]    The applicant, Mr Simpson, and the second respondent, Ms Hamilton, are involved in long-running proceedings in the Family Court at Tauranga over the care of their daughter, Anna.1

[2]    Mr Simpson has filed two new sets of proceedings dated 15 October 2022 (CIV-2022-470-122) and 28 October 2022 (CIV-2022-470-123) seeking judicial review of two decisions made by the Family Court:

(a)a chambers decision of Judge Cook dated 13 June 2022 to decline to recuse herself from this case; and

(b)confirmation in a minute of Judge C L Cook, dated 27 April 2022, of the appointment of Dr Sarah Calvert to provide a psychological report under s 133 of the Care of Children Act.

[3]    The first case management conference was held by Moore J on 13 December 2022 by telephone. All parties agreed that the two proceedings should be consolidated and heard together. Orders were made to that effect. Moore J directed the appointment of Ms A Brown as counsel to assist the Court.

[4]    Ms Hamilton was directed to file a statement of defence by 23 December 2022. Instead, she filed a notice of appearance that she would abide the decision of the Court on 20 December 2022. The Family Court at Tauranga had also earlier filed an appearance abiding the decision of the Court on 7 December 2022.

[5]    At the next conference on 28 February 2023, Jagose J noted that Mr Simpson wanted the two judicial review applications to be determined on the papers. After timetabling the provision of submissions by Mr Simpson, Ms Brown, and counsel for the child, Jagose J directed that the file should thereafter be referred to a Judge for determination on the papers. Mr Simpson’s submissions are dated 26 March 2023.

1      Simpson Hamilton and Anna are not the parties’ real names but were used in the High Court [2018] NZHC 1098 and 1365, [2021] NZHC 2061, [2023] NZHC 28, Court of Appeal [2019] NZCA 579 and the Supreme Court [2020] NZSC 42, to comply with the publication restrictions in s 139 of the Care of Children Act 2004.

Those of counsel to assist are dated 25 April 2023.   The file was referred to me on   7 June 2023.

Utility of orders sought

[6]    The Court will not give a remedy if it is of no utility. In Te Whakakitenga o Waikato Inc v Martin, the Court stated: 2

The Court will not make orders that have no utility. The Court’s time is precious, and it is not the function of Courts to provide abstract opinions … Relief may be inappropriate where the applicant has “achieved the substantial result sought”, where it would serve no useful purpose, or where the passage of time means that it could not have any practical effect.

[7]    In an affidavit dated 14 October 2022 filed in support of these two applications, Mr Simpson recognised the difficulty in resolving the primary care proceedings before Anna turned 16 years of age. Mr Simpson states:

This proceeding has up to now a more than four-times longer duration than the average duration it takes the Court to resolve each Care of Children Act case. In New Zealand applications under the ‘Care of Children Act 2004’ took in 2019 on average 308 days to resolve.

This delay results in emotional harm to children, and stress and anxiety to their parents and extended family. [Anna] is now 14.5 years old. In 1.5 years any parenting order will expire. It seems to be the objective of the authorities of New Zealand to delay all proceedings in New Zealand to this day 03.07.2023.

Even if the Family Court will make a final decision regarding the interim parenting order dated 28.09.2017 in the first half of 2022. A possible appeal to the High Court will not be finalized before [Anna’s] 16th birthday, so that any parenting order will expire.

[8]    Mr Simpson correctly notes that Anna will turn 16 on 3 July 2023, so at the date of his affidavit Anna was in fact 15 years and three months of age. Section 50(2) of the Care of Children Act 2004 (the Act) provides that an order in respect of a child under the age of 16 years expires, so far as it relates to providing day-to-day care for the child, when the child attains that age, unless the Court in special circumstances orders otherwise, on or after making the order.

2      Te Whakakitenga o Waikato Inc v Martin [2016] NZCA 548, [2017] NZAR 173 at [39].

[9]    There is therefore a real question as to the utility of the primary care proceedings where the passage of time means that any outcome of them could not have any practical effect.

[10]   These two applications are not, however, the primary care proceedings so I will determine them, but only in an abbreviated manner because the interim parenting order in favour of Ms Hamilton will expire shortly.

Recusal

[11]   Judge Cook issued a chambers decision on 13 June 2022 declining to recuse herself. At the outset, she recorded the guiding principle that a Judge is disqualified from sitting and determining a case if in the circumstances there is a real possibility in the eyes of a fair-minded and fully informed observer he or she might not be impartial in reaching a decision in the case. She referred to the leading decision of the Supreme Court in Saxmere Company Limited v Wool Board Disestablishment Company Limited.3

[12]   The Judge then reviewed Mr Simpson’s submissions. She summarised the reasons advanced by Mr Simpson for her recusal as follows:

(a)She had not taken the findings of the German Courts into consideration;

(b)She had supported an inaccurate representation of Anna’s views; and

(c)While she had not made any decisions, she had not complied with the principles of the Act and by the delay had breached the requirement to deal with applications consistent with Anna’s sense of time.

[13]   The Judge then stated that to address those issues, it was important to traverse the background of the applications, which she set out at length. She concluded:

[35]      Anna is domiciled in New Zealand. The New Zealand Court is seized of this application and there has been no issue raised as the jurisdiction of the

3      Saxmere Company Limited v Wool Board Disestablishment Company Limited [2009] NZSC 72, [2010] 1 NZLR 35.

New Zealand Court to deal with this issue. [Mr Simpson] has engaged with these proceedings, and by filing applications within the jurisdiction of the New Zealand Court has accepted that jurisdiction. That issue is not related in any event, to an application for recusal.

[36]      In respect of the issue of alienation of [Anna], if those issues are present then that would be identified within the s 133 report.

[37]      There has not been any determination of the substantive care issues for Anna. Therefore, there can be no argument that this Court has supported any concept of alienation. As such, this issue has no bearing on the issue of recusal.

[38]      By my summary of the history of these applications and the management of this file, there is no basis for a submission that I have failed to apply the principle of the best interests of the child.

[39]      I have not made any decision in respect of [Anna’s] care. I have not heard any evidence. I have heard from [Mr Simpson] on approximately two occasions, but there has been no oral evidence or cross-examination.

[40]      I agree that these proceedings have not been progressed consistent with [Anna’s] sense of time. However, from the chronology it is clear that all attempts have been made to progress these applications, but they have not been progressed due in large part to [Mr Simpson’s] requests for delays. However, even if the proceedings have not progressed consistent with [Anna’s] sense of time, that is not of itself a ground of recusal.

[41]      In conclusion I do not find that there any grounds for me to recuse myself from this matter.

Recusal – Grounds for review

[14]   Mr Simpson pleads that Judge Cook is biased or predisposed against him and he will not get a fair hearing in respect of matters yet to be decided for the following reasons:

(a)Delay by Judge Cook, inasmuch as there has been no hearing or decision in the primary care proceedings since 28 September 2017 in breach of s 4(2)(a)(i) of the Act, which states that “decisions affecting the child should be made and implemented within a time frame that is appropriate to the child’s sense of time”.

(b)Judge Cook failed to take into account the mandatory relevant considerations in ss 133(6) and (7) of the Act when ordering  a new    s 133 report.

(c)Judge Cook breached the principles of natural justice in that she failed to deal first with a highly prejudicial judgment of the Court of Appeal4 in relation to the best interests of Anna.

(d)Judge Cook breached s 5(a) of the Act, which requires a child’s safety to be protected.

(e)Judge Cook failed to comply with s 6 of the Act, which requires that, in proceedings involving the role of providing day-to-day care for, or contact with, a child, a child must be given reasonable opportunities to express views on matters affecting the child.

[15]   Mr Simpson seeks an order that Judge Cook “be recused from this case” as well as damages from the State of New Zealand for the costs of the proceedings in New Zealand and compensation for the loss of contact with Anna from September 2017 to October 2022 because of the failure of New Zealand authorities.

Recusal – Discussion

[16]   Judge Cook agrees with Mr Simpson that decisions affecting Anna have not been made and implemented within a timeframe that is appropriate to Anna’s sense of time in terms of s 4(2)(a)(i) of the Act. However, she maintains that all attempts which have been made to progress the various applications have largely been frustrated by Mr Simpson’s requests for delays.

[17]   Having reviewed the myriad of applications, I am of the view that there were also systemic problems in dealing with a large number of inter-related proceedings in a consistent and coherent way, a party who lived on the other side of the world, and COVID-19 travel restrictions in effect for many months.

[18]   This does not mean that Judge Cook was pre-disposed against Mr Simpson. Any Family Court Judge would have faced similar obstacles to resolution of the proceedings.

4      Simpson v Hamilton [2019] NZCA 579.

[19]   Mr Simpson next alleges that Judge Cook failed to take into account the mandatory relevant considerations in ss 133(6) and (7) of the Act when she ordered a s 133 psychological report. Section 133 relevantly provides:

133     Reports from other persons

…

(5)To obtain a written psychological report,—

(a)the court may—

(i)request a psychologist whom the court considers qualified for the purpose to prepare one; or

(ii)direct the Registrar to request a psychologist whom the Registrar considers qualified for the purpose to prepare one;

…

(6)The court may act under subsection (5) only if—

(a)the court is satisfied that the information that the psychological report will provide is essential for the proper disposition of the application; and

(b)the court is satisfied that the psychological report is the best source of the information, having regard to the quality, timeliness, and cost of other sources; and

(c)the court is satisfied that the proceedings will not be unduly delayed by the time taken to prepare the psychological report; and

(d)the court is satisfied that any delay in the proceedings will not have an unacceptable effect on the child; and

(e)the court does not seek the psychological report solely or primarily to ascertain the child’s wishes.

(7)If the court is entitled by subsection (6) to act under subsection (5) and if the court knows the parties’ wishes about the obtaining of a psychological report or can speedily ascertain them, the court must have regard to the parties’ wishes before deciding whether or not to act under subsection (5).

[20]   Mr Simpson maintains that the Court did not have regard to his wishes before deciding whether to order the report. However, it is clear that the Judge did have regard to his wishes.   In her minute dated 27 April 2022, Judge Cook noted that    Mr Simpson did not agree with Dr Calvert undertaking a s 133 report and his advice, given by affidavit, that he and the Ministry of Justice were of the opinion that no further  expert  report  was  necessary.   “Have   regard  to”  does  not   mean  that  Mr Simpson’s wishes must be given a certain weight.

[21]   In any event, Judge Cook was only confirming an earlier direction by another Family Court Judge for the preparation of a s 133 report. Again, this is not evidence of pre-disposition on the part of Judge Cook.

[22]   Mr Simpson then alleges a failure on the part of Judge Cook to act on a judgment of the Court of Appeal dated 22 November 2019.5 The appeal concerned the issue whether an order should be made under s 105 of the Act for the return of Anna to Germany. In a judgment dated 1 September 2017, the Family Court declined to make an order for Anna’s return.6 Mr Simpson’s appeal to the High Court was dismissed in a reasons judgment dated 11 June 2018.7 The Court of Appeal in turn dismissed Mr Simpson’s appeal from the High Court judgment. Although the Court of Appeal stated that the Family Court should have made an order for the return of Anna, circumstances had now changed to such an extent that Mr Simpson’s appeal would be dismissed.

[23]   The Court of Appeal made no orders, gave no directions, or even made any comment about the future course of proceedings in the Family Court. It did, however, make some obiter comments about the best interests of Anna, which Mr Simpson claims should be binding on the Family Court or, at least, highly persuasive in any future Family Court proceedings.

[24]   The difficulty for Mr Simpson’s claim of pre-disposition against Judge Cook is that she has not made any decision in respect of Anna’s case. She has not heard any evidence. She has heard from Mr Simpson on approximately two occasions, but there has been no oral evidence or cross-examination.

[25]   In those circumstances, there is no evidence that Judge Cook is pre-disposed against Mr Simpson.

[26]Section 5 of the Act provides:

5        Principles relating to child’s welfare and best interests

The principles relating to a child’s welfare and best interests are that—

5      Simpson v Hamilton [2019] NZCA 579.

6      [Simpson] v [Hamilton] [2017] NZFC 6923.

7      Simpson v Hamilton [2018] NZHC 1365.

(a)a child’s safety must be protected and, in particular, a child must be protected from all forms of violence (as defined     in sections 9(2), 10, and 11 of the Family Violence Act 2018) from all persons, including members of the child’s family, family group, whānau, hapū, and iwi:

(b)a child’s care, development, and upbringing should be primarily the responsibility of his or her parents and guardians:

(c)a child’s care, development, and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents, guardians, and any other person having a role in his or her care under a parenting or guardianship order:

(d)a child should have continuity in his or her care, development, and upbringing:

(e)a child should continue to have a relationship with both of his or her parents, and that a child’s relationship with his or her family group, whānau, hapū, or iwi should be preserved and strengthened:

(f)a child’s identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.

[27]   Mr Simpson alleges that Judge Cook has breached s 5(a), but has not specified in which way, apart from quoting a comment in the Court of Appeal decision that “[t]he mother’s estranging behaviour had an important bearing on Anna’s objection”,8 and in the High Court decision, “The sad fact is that Anna has grown to her present age alienated from her father.”9

[28]   These two comments do not lead to Judge Cook, or give any suggestion that she may be pre-disposed against Mr Simpson.

[29]   Finally, Mr Simpson cites a number of comments made by the Court of Appeal before alleging that, “Despite these findings the Family Court still consider the view of the manipulated child”. Mr Simpson seems to suggest that Judge Cook has failed to comply with s 6 of the Act, which provides that a child must be given reasonable opportunities to express views on matters affecting the child.  However, it seems   Mr Simpson would have the Family Court ignore any view Anna may express because she has been manipulated by her mother. Again, that does not provide any basis for suggesting pre-disposition on the part of Judge Cook.

8      Simpson v Hamilton, above n 5 at [56].

9      Simpson v Family Court at Tauranga [2021] NZHC 2601 at [70].

Section 133 report

[30]   Judge Cook issued a minute, dated 27 April 2022, following a telephone conference in which Mr Simpson had attempted unsuccessfully to participate because of telecommunication difficulties involved in joining the conference from Germany. A number of matters were dealt with at the conference.

[31]On the issue of a s 133 report, Judge Cook recorded:

On 2 February 2018 a s 133 report was directed. Dr Calvert was appointed by the court in respect of that report and my understanding, and that is confirmed in the affidavit of [Ms Hamilton] of 25 March 2022, is that Dr Calvert has met [Anna] on two occasions in September 2018 and April 2019. She has also prepared an interim report to the Court on 3 January 2019.

[Mr Simpson] does not agree with Dr Calvert undertaking that report. I directed that [Mr Simpson] provide an affidavit setting out his proposals in terms of travelling to New Zealand and in respect of [Anna] going forward. I made those directions in terms of paragraph [2] of my minute of 5 November. [Mr Simpson] has filed an affidavit but his affidavit indicates that he will not accept Dr Sarah Calvert as an expert report writer and the signatory and the Ministry of Justice New Zealand have the opinion that no further expert report is necessary. That is paragraph [3] and [4] of his affidavit.

Today I confirm a direction and action which has already been made by the Court both in terms of the judicial direction of his Honour Judge Coyle back in 2018 and that then acted on administratively by the registry by the appointment of Dr Calvert. Mr task today is simply to progress matters and in progressing matters I must be bound by s 4 and s 5 principles on a case by case basis as they inform the welfare and best interests of [Anna].

Given the circumstances and the need to progress this matter I am simply going to action the s 133 report which has been directed.

[32]   After referring to the issue of Mr Simpson travelling to New Zealand and what he proposed for Anna going forward, the Judge concluded:

Simply where all of that leaves me is that the appointment of the report writer is confirmed, Dr Calvert, she has had that contact, she has already actioned her brief to a limited extent. She has met with [Anna] and given the other changes that [Anna] has had to cope with in terms of the professionals she has had to deal with such as lawyer for child, I am of the view that it is not appropriate to revisit that direction which has already been actioned by the registry.

[33]   It appears that Mr Simpson may not have received a copy of the minute dated 27 April 2022 because in his statement of claim, he alleges that he was not aware of

an order for  a s 133  report until he  received an email dated 26 May  2022 from    Dr Calvert, which stated:

You will be aware that the Family Court has ordered a new sec 133 Report in respect to the situation with [Anna].

Section 133 report – grounds for review

[34]   Mr Simpson pleads that the District Court was wrong to order a s 133 report from Dr Calvert for the following reasons:

(a)The Family Court failed to take into account the mandatory relevant considerations in ss 133(6) and (7) of the Act when ordering  a new    s 133 report.

(b)A fourth s 133 report was not necessary.

(c)The Court of Appeal had serious doubts as to the quality of the report of Dr Calvert made for the Court of Appeal dated 13 May 2019, which was nearly identical to the expert report of Dr Calvert dated 3 January 2019 for the Family Court.

(d)The Family Court breached the rule of law by failing to comply with ss 4 and 5(e) of the Act.

(e)The Family Court’s delay has breached s 4(2)(a)(i) of the Act.

[35]   Mr Simpson seeks an order that the direction for a s 133 report be reviewed by the Court, an order that the direction for a fourth expert report is invalid, an order in the alternative that Dr Calvert is not a qualified expert, as well as damages from the State of New Zealand for the costs of the proceedings in New Zealand and compensation for the loss of contact with Anna from September 2017 to October 2022 attributable to the failure of New Zealand authorities.

Section 133 report – Discussion

[36]   The Court of Appeal has recently considered the issue whether it is open to a party to proceedings under the Act to apply to the High Court for judicial review of a s 133 order, or whether such an application an abuse of process. In Newton v Family Court at Auckland, the Court of Appeal summarised its position as:10

Judicial review of s 133 orders

[6]        Judicial review is in principle available in respect of an interlocutory decision made by a Family Court judge under COCA, where the judge has failed to exercise a statutory power in accordance with that Act. But such a decision will be set aside in judicial review proceedings only where such relief is consistent with the scheme of the legislation, including the carefully structured appeal rights set out in s 143 of COCA. Judicial review is intended to ensure fidelity to the statutory scheme, not to undermine it.

[7]        Section 143(3A) of COCA expressly provides that there is no right of appeal from a s 133 order, even by leave. That restriction reflects two considerations: the nature of a s 133 order — it is a preliminary order made to obtain information that the judge considers will assist the court to make substantive decisions — and the need for prompt decision-making under COCA. It would undermine the statutory objective set out in s 4(2) of making decisions in a timeframe consistent with a child’s sense of time if parties could delay obtaining a s 133 report, and delay informed decision-making on a substantive application, by pursuing challenges to s 133 decisions.

[8]        It would be inconsistent with the statutory scheme for relief to be granted in judicial review proceedings in respect of a decision under s 133 except in a very clearcut case of fundamental error. An order under s 133 will not be set aside in judicial review proceedings merely because the High Court judge considers that the criteria set out in s 133(6) were not met. The High Court judge would need to be persuaded that it was not open to the Family Court judge to form the view that the criteria were met.

[9]        Section 133(7) of COCA requires the court to have regard to the parties’ wishes before deciding whether or not to make a s 133 order, if the court knows the parties’ wishes or can speedily ascertain them. But the child who is the subject of an application for a parenting order is not a party to the proceedings. Section 133(7) does not require the court to ascertain the child’s views. Nor are those views a mandatory relevant consideration before a Family Court judge can make an order for a s 133 report to be obtained. A s 133 order cannot be challenged in judicial review proceedings on the basis that the child’s views were not obtained before the order was made.

[10]      Judicial review of a s 133 order may be granted in rare circumstances where:

10     Newton v Family Court at Auckland [2022] NZCA 207; [2022] 3 NZLR 846.

(a)the ground of review is consistent with the statutory scheme. Thus for example judicial review might be sought on the grounds of apparent bias; and

(b)it is necessary to do so in order to avoid consequences that could not be remedied by waiting for the Family Court to make a final decision, and a party exercising rights of appeal in respect of that final decision.

[11]      Review of a s 133 order on the grounds of pre-determination is also in principle available. But care needs to be taken to distinguish between prompt decision-making on a frequently encountered preliminary issue by a well-prepared judge with substantial experience of such matters, and a decision made by a judge with a closed mind that is made up in advance, and is not open to persuasion. Only the latter amounts to pre-determination.

[37]   As to the allegation that the Family Court failed to have regard to the mandatory relevant considerations in ss 133(6) and (7) of the Act, the Court in Newton made it clear that it would be inconsistent with the statutory sentence for relief to be granted in judicial review proceedings in respect of a decision under s 133 except in a very clear-cut case of fundamental error.11 I am of the view that there was no fundamental error in ordering a s 133 report in the present case.

[38]   Mr Simpson suggests that this is the fourth s 133 report ordered, with the implication that it is redundant. However, it is necessary to look at the history of the order to see when and where it was made. In her report dated 10 October 2022, which has only been made available at this stage to counsel for the child and counsel assisting the Court, Dr Calvert notes that the report was first ordered by Judge Coyle in 2018. It has been delayed by ongoing legal proceedings unrelated to the ability to progress the report itself. Interim reports were prepared for the Family Court dated 3 January 2019, and for the Court of Appeal dated 13 May 2019. There were substantial limitations on the opinions which could be formed because of Mr Simpson’s lack of contact with Anna and residence in Germany, as well as restrictions later caused by the COVID-19 pandemic.

[39]   It was also clear from Judge Cook’s minute dated 27 April 2022 that she was not ordering a new s 133 report,  but  confirming  the  original  order  made  by Judge Coyle on 2 February 2018.

11     Newton v Family Court at Auckland, above n 10 at [8].

[40]   I am of the view that the Family Court Judges were entitled to conclude that the information a s 133 report would provide would be essential for the proper dispensation of the parenting order in terms of s 133(6)(a) of the Act. The fact that proceedings were unduly delayed (s 133(6)(c)), and that the delay in proceedings may have had an unacceptable effect on Anna (s 133(6)(e)), does not make the Family Court’s order for a s 133 report unlawful or unreasonable. It was open for both Judge Coyle and Judge Cook to form the view that the criteria in s 133(6) were met.

[41]   There were two separate judgments in the Court of Appeal – Gilbert J gave the judgment for himself and French J, while Miller J gave a distinct, but concurring judgment. Dr Calvert accepts that Miller J did not accept some of the evidence on which her views were based. Specifically, he did not accept that Ms Hamilton was truthful in her assertion that she (and her husband and younger daughter) would not return to Germany if Anna was required to return. As a result, Miller J considered that some of Anna’s views had to be discounted as they were a product of misunderstanding on her part. Miller J considered that part of Anna’s fear of her father was a response to her mother’s manipulation. Nonetheless, Miller J noted that the abduction of Anna from her school had had a significant impact on Anna (and her views) and that, as a result, her views and expressed fear of her father could not be discounted. This led Miller J to concur with his colleagues in the result.

[42]   Comments in the Court of Appeal, especially those of Miller J, do not, however, disqualify Dr Calvert from providing an expert opinion. Any expert is only as good as the evidence on which they rely. Fact finders do look closely at the evidence upon which experts rely. Experts also often differ. Just because Mr Simpson may disagree with Dr Calvert’s views, does not mean that her evidence should not be admitted in the continuing proceedings.

[43]   Section 4 of the Act provides that the child’s welfare and best interests are paramount, while s 5(e) provides that a child should continue to have a relationship with both of his or her parents. However, it is difficult to see how ss 4 and 5(e) of the Act are engaged by a Family Court decision to order a s 133 psychological report on the basis that the information it will provide is essential to the proper disposition of the primary care proceedings. A s 133 report will increase the pool of knowledge from

which a Court can draw assistance in reaching its substantive decision. It is when making that substantive decision that the requirements and principles in ss 4 and 5(e) come into play.

[44]   As noted above in [16], Judge Cook agrees with Mr Simpson that decisions affecting Anna have not been made within a timeframe that is appropriate to Anna’s sense of time in terms of s 4(2)(a)(i) of the Act. The s 133 report has, however, now been completed and has been made available to counsel for the child and counsel assisting the Court. The Family Court directed a telephone conference of the parties to discuss, among other things, the release of the s 133 report to them, given the proceedings taken by Mr Simpson challenging the ordering of the report. I am not persuaded that the ordering of the report itself is vulnerable to challenge on the basis of a breach of the principle in s 4(2)(a)(i). It was not unlawfully or unreasonably ordered.

Result

[45]   The two applications for judicial review are dismissed. There are no grounds for the recusal of Judge Cook. Nor is the ordering of a s 133 report flawed in some way. As a result, damages are not available. As to costs, the two respondents have both abided the decision of the Court. Costs are therefore to lie where they fall.

Woolford J