VH v District Court at Auckland
[2014] NZHC 1303
•9 June 2014
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004
AND S 125 OF THE DOMESTIC VIOLENCE ACT 1995, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-001324 [2014] NZHC 1303
BETWEEN V H
Applicant
AND
THE DISTRICT COURT AT AUCKLAND
First Respondent
N R
Second Respondent
Hearing: 9 June 2014 Counsel:
L La Mantia for Applicant
EB Parsons for First Respondent C Wilson for Second Respondent DM Sim for the children
Judgment:
9 June 2014
ORAL JUDGMENT OF FOGARTY
Solicitors: Palmer & Associates, Auckland
Copy to: L Mantia [email protected]
EB Parsons [email protected]
C Wilson [email protected]
DM Sim [email protected]
V H v THE DISTRICT COURT AT AUCKLAND [2014] NZHC 1303 [9 June 2014]
[1] These are proceedings by way of judicial review. This is the first call. There is an application for interim orders pursuant to s 8 of the Judicature Amendment Act
1972.
[2] The context of this case is an allegation that the father is the source of some form of abuse of both children. The mother obtained an order preventing the father having access to the children, without the father being heard. The father has not had access to the children since March 2013.
[3] On 7 April last, Judge Burns was dealing with a number of procedural arguments, including the ability to challenge the psychologist’s first and second reports, on the basis that the information that the psychologist had obtained was unreliable. The Judge granted leave for witness summonses to issue in respect of some of the persons who had been interviewed by the psychologist. Then he turned to what he described as:
[14] The next issue I have to decide is whether or not the case is set down for an urgent interim hearing as to whether supervised contact is reinstated or not.
[4] In the next paragraph, he adverted to ss 4 and 5, Care of Children Act 2004. He observed:
[15] ... A little over a year in the lives of the two children is significant and the Act requires me to advance the issues in a timely way. There has been attempts to try and reinstate supervised contact. The Court has to weigh up the pros and cons of such contact and has to be satisfied that the benefits outweigh any detriments. In this case [the mother] contends that the detriments will be so significant that there should be no contact at all.
[5] The Judge then drew upon his experience and said:
[16] As a Family Court Judge for nearly 10 years now and having practised family law for approximately 28 years previously including being lawyer for a child, there are very rare cases where there is no contact at all of children with a non-day-to-day care parent. I can count them on almost one hand the number of cases where that has occurred. It does occur from time to time but it is extremely rare. Father accepts it has to be supervised until there is a full hearing.
[6] The Judge then went on to conclude that there had to be urgent consideration as to whether there would be such supervised contact in the meantime. Then he said:
[18] I, therefore, direct that it be set down for a two hour fixture to solely determine whether there is or is not supervised contact reinstated, who the supervisor might be, the terms and conditions of such supervised contact and any other conditions that need to apply to ensure the children’s interim safety to make sure that the provision of supervised contact is suitable or not.
He went on:
[19] I direct that only the parties are to be available for cross-examination and the standard timeframes applicable under the new Act are to apply to that fixture. No other witnesses are to be called. Submissions can be made in relation to any application of the psychologist’s report and any weight that should be given to it or not. Therefore [the mother] can put before the Court any methodological arguments and contend that there should be little weight put to the psychological report.
I should say, the psychological report tended to minimise the degree of harm being
alleged to have occurred by the mother as a result of the father’s behaviour.
[7] The application for judicial review has been lodged seeking as final relief, that this Court set aside this judgment, I have just read out, being the decision to allocate an interim two hour hearing and, rather, direct that the substantive hearing be set down in the District Court on a priority basis, allocating three days for the hearing.
[8] The application for interim relief has also been lodged and it seeks exactly the same remedies as in the substantive statement of claim. Ms La Mantia was unable to cite any precedent whereby the High Court has, in similar situations, quashed a two hour interim hearing. She argued that the Court should intervene now because it could not be a fair hearing given that it was limited to two hours, that only the parties were available for cross-examination and the other restraints on the hearing that I have summarised.
[9] She also is concerned as to the small likelihood of avoiding a judgment, that there would be interim supervised contact. She is right to be concerned about the matter. These cases tend to proceed in both an adversarial and inquisitorial sort of process. Assessments of clinicians and expert judges tend to accumulate in the course of the process. I read the judgment of Judge Burns as indicating that a very solid argument or case will have to be advanced within the two-hour fixture to avoid
place until the end of the year. Plainly, the Judge is concerned that if interim orders are not put in place, nearly two years could go by with these children not having any contact with their father. He has designed a limited hearing which, on my reading of it, is designed as a check against a presumption that this case cries out for some interim contact in the children’s interests, with their father.
[10] The High Court, as the court of inherent jurisdiction, has a well established reluctance not to interfere with decisions which might be termed “judicial administration”. That is, deciding what points need to be heard and on what terms. The High Court is broadly familiar with the work of the Family Court but without the enormous benefit of day to day experience with the structure and scheme of the family law legislation. I have heard some argument today from Ms Parsons that recent amendments to the law virtually forced the Judge into making these interim orders. I don’t think I need to go into the law. It was not argued that the Judge erred in law. It is sufficient to have considered the reasoning of the Judge and to have noted that in the absence of any authority put before me which would justify intervening to set aside this fixture, set up and designed by a very experienced Family Court Judge. I am quite satisfied that the case for making out an interim relief under s 8 is not justified.
[11] I am satisfied of that, firstly, because I can see no clear procedural injustice in the judgment that I have just summarised and analysed. And, secondly, that the effect of granting an interim order would be to grant the final relief sought.
[12] If I were to grant the interim order, that would effectively obviate the need for a hearing because if the judicial review is set down for hearing in the usual way, it is unlikely to be heard until the last quarter of this year which runs up against the more substantive hearing due to take place in the Family Court.
[13] The substantive hearing may be heard in December but there is a risk that it may not be heard until 2015. For these reasons, I am satisfied that the application for interim relief lacks merit. I have also queried the merit of the substantive claim, being directed to this interim relief as well. I am conscious that by refusing the
irrelevant. Taking all these factors into account though, I am quite satisfied that the judgment of Judge Burns should not be disturbed by way of a judicial review and it does not disclose any procedural injustice, when read in its factual context.
[14] For these reasons, the application for interim relief is dismissed. The judicial review proceedings as such are not struck out, there being no application to strike them out. It will be a matter for the applicant to decide whether or not to pursue them.
[15] Leave is reserved to the first and second respondents to apply for a telephone conference should the applicant not appear to make an early judgment as to whether or not to pursue the judicial review proceedings any further. In that context, the application might be to strike the proceedings out. But, in any event, I urge upon the applicant to make a decision whether or not to pursue the judicial review proceedings as such because the Registry and the Court need to know the status of these proceedings. But I do not want to burden the parties with additional costs by adjourning the application for judicial review to another Duty Judge List at the present time.
[16] I have been assisted by submissions from Ms Sim, who is counsel for the children, and she is appointed as counsel for the children for her attendance here today. And also is appointed counsel for the children in the event that there are any further hearings – whether by telephone conference or before a judge in chambers or in court. Ms Sim will use her judgment, as to whether or not it is in the interests of the children that she appear.
[17] I am going to reserve the question of costs. Normally the successful party – in this case, the respondent – is entitled to costs. I leave it to the parties to negotiate to see if they can reach agreement on costs. If they cannot reach an agreement, then I will receive submissions from each side, limited to five pages, which are to be exchanged in draft before filing. I will put a time limit on that. If no agreement is reached within one calendar month from today, then either party has leave to initiate the process of filing submissions in the manner I have just indicated, with the
five weeks from now, I will receive the submissions failing agreement to settle costs.
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