U v Family Court at Auckland
[2020] NZHC 3097
•23 November 2020
ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILDREN. IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-2212
[2020] NZHC 3097
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of a decision under the Care of Children Act 2004
BETWEEN
U
Applicant
AND
FAMILY COURT AT AUCKLAND
First respondent
N
Second respondent
Hearing: 19 November 2020 Appearances:
V A Crawshaw QC and S M Wilson for the applicant H T N Fong for the first respondent
L L La Mantia for the second respondent
Judgment:
23 November 2020
JUDGMENT OF PALMER J
This judgment was delivered by me on Monday 23 November 2020 at 3.30pm.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
Counsel/Solicitors:
V A Crawshaw QC, Auckland
L L La Mantia, Barrister, Auckland Gellert Ivanson Lawyers, Auckland Ayres Legal, Auckland
U v FAMILY COURT AT AUCKLAND [2020] NZHC 3097 [23 November 2020]
Summary
[1] Ms U applies for interim orders to prevent a Family Court hearing on Friday 27 November 2020 from proceeding. The hearing would consider whether Ms U’s former partner, Mr N, should continue to have supervised contact with their children or whether their contact should be unsupervised. But I am not persuaded there is a very clear case for interim orders. I am not persuaded the merits of the substantive application for judicial review are strong. I do not consider the balance of convenience favours Ms U. There is no basis on which to speculate that the Court might make a bad decision. I do not consider the interim orders sought are necessary to preserve Ms U’s position. Rather, they would pre-empt the Family Court from hearing argument on issues of which it is the best judge. The overall interests of justice do not favour the application, which I dismiss.
What happened?
Family Court proceedings
[2] Ms U and Mr N are parties to proceedings in the Family Court under the Care of Children Act 2004 (COCA) and the Family Violence Act 2018 (FVA). Mr N was the day-to-day caregiver for their children until he and Ms U had a final separation in March 2020. Ms U alleges there has been a long history of physical, psychological and sexual abuse perpetrated by Mr N against her to which the children have been exposed, and of which they have also been the targets.
[3] On 10 March 2020 the Family Court granted temporary protection, temporary tenancy and interim parenting orders in favour of Ms U, without notice. The interim parenting order provided for the children to be in Ms U’s day to day care and for Mr N to have court-supervised contact. On 12 March 2020, Mr N applied for an order to prevent the children being removed from New Zealand. On 2 July 2020, Mr N and Ms U agreed to vary the supervision order so Mr N could have supervised contact with the children three times a week.
[4] On 5 October 2020 Judge Muir, in the Family Court, directed there be a three- hour safety hearing to determine whether Mr N’s contact should be unsupervised. He stated:1
[6] While that difficulty [that factual findings about family violence are essential before the Court can make safety findings] is acknowledged it is, as both Ms La Mantia and Mr Askelund have pointed out, not uncommon for courts to proceed to deal on an interim basis with s 5A issues before there is the final substantive determination of the family violence proceedings.
[7] The reality in this case is that if we are to await the allocation of a substantive hearing we will be waiting well into the New Year and that not only offends against the children’s sense of time and their rights to have matters determined within a meaningful time period but also offends against he need for these parties to have some meaningful decisions made about the children’s care and welfare.
[8] I record the fact that of course it is the respondent that is taking the risk here. It may well be that at the end of a half-day s 5(a) hearing the judge is unable to reach a decision because of the outstanding Family Violence Act factual issues. In that case there may be a limit to the orders that the Court can take. That is a risk that the respondent will face. I have decided to allocate the interim hearing that has been requested.
[5] Judge Muir directed that the oral evidence be confined to cross-examination of Ms U and Mr N only. The parties have filed or are filing evidence, including from 10 or 11 witnesses. Three of them are the supervisors. Mr N is providing two affidavits from others in addition to his own evidence. Ms U’s affidavits are from two of Mr N’s siblings and an expert report of a psychologist about Mr N’s behaviour exhibited on a recording. Mr N has applied to strike out some of Ms U’s evidence in the substantive proceeding (but not at the 27 November 2020 hearing) which he says does not relate to a risk to the children’s safety. Because it is not a final order, there is no right of appeal from the decision of the Family Court on the basis of the 27 November 2020 hearing, except by leave of the Family Court.2
Applications for judicial review and interim orders
[6] On 10 November 2020, Ms U applied for judicial review of Judge Muir’s decision, seeking that the hearing be quashed and a hearing of both the safety issues regarding unsupervised access, and the family violence protection issues, of
1 Minute of Judge K Muir, FAM-2020-004-206 and 207, 5 October 2020.
2 COCA, s 143(3). See also CDA v DGP [2019] NZHC 3277 at [23]-[25].
appropriate duration be directed. The proceedings were served on Mr N on 13 November 2020. The grounds of review are that the decision:
(a)failed to take into account the mandatory relevant considerations of ss 5(a) and 5A of the COCA;
(b)breached natural justice in denying the opportunity to have all relevant evidence heard;
(c)erred in prioritising the additional time required to the determine the COCA issues ahead of the FVA issues; and
(d)failed to take into account mandatory considerations in the COA in truncating and limiting the safety hearing.
[7] On Tuesday 17 November 2020, Ms U applied without notice for interim orders declaring that the Family Court should not continue with the 27 November 2020 hearing or take further action consequential on the 5 October 2020 decision, pending determination of the judicial review. They were served on a Pickwick basis on 18 November 2020. Mr N opposes the application.
[8] I did not consider the application should be heard without notice. Neither was any hearing, even of one hour, available in the Auckland High Court before Friday 27 November 2020. Accordingly, I heard argument from the parties in the Judicial Review List on Thursday 19 November 2020, including from Ms La Mantia for Mr N on a Pickwick basis. I made clear that the parties should continue to prepare for the 27 November 2020 hearing.
[9] Ms U, with the consent of the other parties, applies for anonymisation of the parties’ names and that they not be identified, that the court file not be searched without the parties being able to address the Court, and that no person be permitted to publish any report of the proceedings with identifying information. Given the involvement of children in these proceedings, I grant those orders, which parallel ss 11B to 11D of the Family Courts Act 1980.
Relevant law
Law of interim orders relevant to children’s care
[10] Under s 15 of the Judicial Review Procedure Act 2016, the Court may make interim orders “if, in its opinion, it is necessary to do so to preserve the position of the applicant”. The Court has a wide discretion to consider all the circumstances of the case in deciding whether to grant interim relief.3 Making interim orders involves considering the seriousness of the question to be argued, the strength of the applicant’s case, the balance of convenience between the parties and the overall justice of the case. Interim orders are usually intended to preserve the applicant’s position as provided for in s 15. That can include restoring an applicant to a position they would have been in but for the alleged unlawfulness.4
[11] Where an application for interim orders concerns the day-to-day care of children, the welfare and best interests of the children in their particular circumstances must be the “first and paramount consideration”, as required by s 4(1)(b) of the COCA.5 Section 4(2) requires that must involve taking into account “the principle that decision affecting the child should be made and implemented within a time frame that is appropriate to the child’s sense of time”. The principles in s 5 must also be taken into account, including the protection of children’s safety, continuity in their care and preserving and strengthening their relationship with their parents.
[12] In 2011, in PJM v Family Court at Waitakere, Venning J declined an application to stay a Family Court order for supervised access pending the hearing of a judicial review.6 He considered similar principles apply to an application for interim orders that would stay a Family Court proceeding as do to an application for stay pending determination of an appeal:7
· The first and paramount consideration is the welfare and best interests of the child.
3 Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) at 430.
4 Whiskey Jacks Rotorua Ltd v Minister of Internal Affairs HC Wellington CIV-2003-485-1901, 11 September 2003 at [40]; Greer v Chief Executive, Department of Corrections [2018] NZHC 1240, [2018] 3 NZLR 571 at [22]-[26].
5 Lowe v Auckland Family Court [2017] NZHC 209 at [18].
6 PJM v Family Court at Waitakere [2012] NZFLR 296 (HC) at [30].
7 At [24].
· A highly relevant consideration is whether the appeal would be rendered nugatory if a stay is refused.
· The arguments in favour of a stay will be stronger if the decision under appeal has the effect of significantly changing the status quo.
· The Court will have regard to any evidence of lack of bona fides in the filing of an appeal and the application for stay as a consequence.
· A stay will be more likely to be granted where there are strong grounds to support the appeal and vice versa.
· Each case will turn on its own facts. The length of time before the appeal is likely to be heard, the current circumstances of the parties and children and the consequences of delay pending the hearing of the appeal will all be relevant.
[13] In BT v Family Court at Auckland I indicated a “very clear case” for interim orders would be required for the High Court to interfere with a substantive Family Court hearing.8 I also noted the requirements of s 4 of COCA for a court considering an application for interim orders.9
[14] As Walker J said in Christiansen v Director-General of Health, “[j]ust because interim relief will effectively or practically determine the proceeding through dint of circumstance does not present an insurmountable hurdle”.10
Family Court procedural decisions
[15] The Family Court makes procedural decisions under the Family Court Rules 2002. Their purpose is expressed to be:
3 Purpose of these rules
(1)The purpose of these rules is to make it possible for proceedings in the Family Court to be dealt with—
(a)as fairly, inexpensively, simply, and speedily as is consistent with justice; and
(b)in such a way as to avoid unnecessary formality; and
(c)In harmony with the purpose and spirit of the family law Acts under which the proceedings arise.
8 BT v Family Court at Auckland [2019] NZHC 2929 at [18].
9 At [17].
10 Christiansen v Director-General of Health [2020] NZHC 887.
(2)These rules must be read in the light of their purpose.
[16] Under r 416ZB, at a pre-hearing conference a Judge is able to “give any directions that the Judge considers necessary to ensure that the proceeding will be ready to be determined at the hearing”.
[17] Rule 416ZF provides a formula which sets the maximum time limits for hearings, unless a judge considers the times should be varied because it is a complex case or for other good reason. The limits are fairly compressed, involving, with respect to a party as witness for example: 10 minutes for examination; 40 minutes for cross- examination by each party and 30 minutes for cross-examination by lawyer for the child; five minutes for re-examination. Ten minutes are allowed for submissions on the law by each party.
[18] Rule 416ZG empowers a judge to direct a submissions-only hearing if satisfied some or all of the issues in dispute can be determined without witnesses or cross- examination. If that turns out not to be so, the judge can make further directions.
Submissions
[19]Ms Crawshaw QC, for Ms U, submits:
(a)The prejudice to Mr N of his application for unsupervised contact not being heard on 27 November 2020 is outweighed by the prejudice to Ms U and the children of the Family Court proceedings continuing. The truncated hearing is not only a risk to Mr N but is also a real safety risk to the children because of the truncation of the hearing and the Court not hearing from other witnesses. Separation of the COCA and FVA proceedings is not best practice.
(b)The judicial review has merit because if all relevant considerations, including proper testing of the evidence, really were taken into account the directions would be a logical impossibility. She would not have any hope of putting to Mr N in cross-examination all the evidence that is highly relevant to the children’s psychological safety.
(c)The orders sought are necessary to preserve the position of Ms U from what the Family Court might decide. Otherwise, Ms U’s judicial review will be rendered nugatory.
(d)If the judicial review succeeds, then a proper three-day Family Court hearing can be scheduled. If it does not, a new hearing on a truncated basis can be scheduled, though probably not before the end of 2020.
(e)There has been no strategic delay. Ms U made a genuine attempt to see if the issues could be resolved in an alternative manner, which was not successful. The application was prompt.
[20] Mr Fong, for the Family Court, abides the Court’s decision on the application for interim orders. However, he noted that, given the pace of the proceedings, the Court does not have the benefit of hearing from the lawyer for the children. He suggested the Court may wish to appoint a lawyer for the children and ask them to appear if this matter proceedings. The other parties indicated they would not object to that.
[21]Ms La Mantia, for Mr N, submits:
(a)It is not necessary for the safety hearing to be more than three hours. The evidence filed and written submissions can be read beforehand and afterwards if the decision is reserved. She submits r 416ZF of the Family Court Rules 2002 provides a limit of one and a half hours for cross-examination of parties in a long cause hearing. The time available in this hearing will not be far off that.
(b)The substantive judicial review is unlikely to succeed. The Family Court’s minute acknowledges there are serious issues and refers to the sections which Ms U claims were ignored. Mr N accepts the children were indirectly exposed to psychological abuse but he does not accept he is a risk to the children. He also contends there is psychological harm to the children in being removed from their primary caregiver for
substantial time. The Family Court is a specialist court and well-placed to decide whether there is sufficient evidence and whether safety findings can be made safely.
(c)The interim orders would effectively grant the relief sought in the substantive judicial review, in that delay of at least four months would be achieved. It is in the welfare and best interests of the children that a decision on supervision is made in a timely manner, in keeping with the children’s sense of time, particularly where Mr N was the primary caregiver before separation. If the interim orders are not granted, the substantive application is not rendered nugatory because Ms U can appeal a decision coming out of the 27 November 2020 hearing.
(d)Ms U knew about the scheduled hearing from 5 October 2020. Her delay in applying for interim orders was too great.
(e)The High Court should not constrain the Family Court’s administration of its own proceedings, especially in light of the statutory requirement for speed consistent with a child’s sense of time. The overall interests of justice require that the children are entitled to have the supervision issue determined speedily.
Should the Family Court hearing be stopped?
[22] I do not consider there is anything significant in the argument that the application for interim orders was too delayed. But I am not persuaded there is a very clear case for interim orders.
[23] I am not persuaded that the merits of the substantive application for judicial review are strong:
(a)Sections 5(a) and 5A of the COCA are referred to very directly in Judge Muir’s minute. The decision even characterises the 27 November 2020
as a “s 5(a) hearing”.11 There seems limited room to argue he did not take those sections into account.
(b)It is not clear to me that the decision denied the opportunity to have all relevant evidence heard. The Family Court Rules emphasise speediness. It is not clear a longer-cause hearing would engender significantly greater relevant evidence. What has been ordered is more than a submissions-only hearing. The Judge has provided Ms U and Mr N with the opportunity to give evidence and be cross-examined. They have taken or are taking up the opportunity to adduce further affidavit evidence. Ms U is adducing more affidavit evidence than Mr N, which means a greater opportunity to have that evidence tested does not necessarily favour her interests. I take into account that the Family Court is a specialist jurisdiction, able to assess the amount of time likely to be required for different sorts of hearing. If that assessment turns out not to be correct here, the Judge may be unable to reach a decision. That would be a risk for Mr N, not Ms U or the children, because the supervision requirements would likely remain.
(c)Neither am I convinced that it is necessarily an error to determine COCA issues separately from FVA issues. The difficulties in doing so were clearly signalled in the minute as a risk for Mr N. Again, the supervision requirements would likely remain.
(d)For the same reasons, I am not convinced it is likely the Judge failed to take into account the mandatory considerations in the COCA. Rather, his minute suggests he was very much alert to them.
[24] I do not consider the balance of convenience favours making the interim orders sought. If the orders are not made, the judicial review would only be rendered nugatory to the extent that the relief sought involves hearing the safety and family violence issues together. That factor is not determinative and the consequences of delay outweighs it. If the orders are made then both parties, and most importantly the
11 At [8].
children, will likely be significantly delayed in having the supervision issue resolved. Given their age, that is not consistent with the children’s sense of time. If the orders are not made, and the hearing proceeds, the Family Court will be required to make a decision on the basis of the welfare and the best interests of the children. The children, and the parties, will benefit from that.
[25] There is no basis on which to speculate that the Family Court might make a bad decision. I do not consider the interim orders sought are necessary to preserve Ms U’s position. Rather, they would pre-empt the Family Court from hearing argument on issues of which it is the best judge. The overall interests of justice do not favour the application for interim orders.
Result
[26] I dismiss the application for interim orders. I award costs to Mr N against Ms U, on a 2B basis. I invite the lawyer for the children in the Family Court proceeding to act for the children in the judicial review if it proceeds.
Palmer J
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