W v Family Court at Palmerston North
[2018] NZHC 1620
•25 June 2018
NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER
INFORMATION, PLEASE SEE
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIŌEA ROHE
CIV-2018-454-25
[2018] NZHC 1620
UNDER the Judicial Review Procedure Act 2016 and the Family Court Rules 2002 IN THE MATTER
of an application for judicial review of decisions made under r 429 of the Family Court Rules 2002 and in respect of an application made refusing use of affidavits
filed in Family Court proceedings to be used in criminal proceedings
BETWEEN
W
Applicant
AND
FAMILY COURT AT PALMERSTON NORTH
First Respondent
L
Second Respondent
Hearing: 25 June 2018 Counsel:
D A Ewen for Applicant
Appearance for First and Second Respondents excused
Judgment:
25 June 2018
Reasons:
3 July 2018
JUDGMENT OF THOMAS J [REASONS]
W v FAMILY COURT AT PALMERSTON NORTH [2018] NZHC 1620 [25 June 2018]
[1] The applicant awaits trial in the District Court on charges of sexual violation by rape, indecent assault and assault. The charges relate to the second respondent as complainant and her children. The applicant and second respondent were in a relationship at the time of the allegations. There have also been proceedings involving the applicant and the second respondent and their child under the Care of Children Act 2004 (COCA), and the applicant and second respondent under the Domestic Violence Act 1995. The applicant’s lawyer sought access to the complainant’s affidavits filed in those related proceedings to be used in his criminal trial in order to challenge the second respondent’s credibility. Access was refused by the Family Court and the applicant commenced these judicial review proceedings.
[2] On 25 June 2018, I quashed the Family Court decision and gave a direction to the Family Court that the applicant, personally or through counsel, could access the files, obtain copies and use them in the criminal proceedings subject to any directions of the trial Judge.1 I now give my reasons.
Background
[3] The applicant and second respondent were in a relationship and have a son together, P. They separated in 2014.
[4] In 2015, the applicant commenced proceedings under the COCA seeking a parenting order in respect of P. The second respondent swore an affidavit dated 28 February 2015 in the COCA proceedings. She alleged the applicant had abused her but did not make any allegations he sexually violated her.
[5] In or about July 2016, the second respondent sought a protection order against the applicant without notice in proceedings pursuant to the Domestic Violence Act 1995 (the DV proceedings).
[6] The applicant believes the second respondent’s affidavits in respect of both the COCA and DV proceedings (together the Family Court Proceedings) are inconsistent with her allegations that the applicant sexually violated her. The applicant considers
1 W v Family Court at Palmerston North [2018] NZHC 1531.
the inconsistencies are relevant to the credibility of the second respondent as complainant in the criminal proceedings.
[7] By letter dated 8 February 2018, counsel for the applicant in the criminal proceedings, Mr Foster, made an application under r 429 of the Family Court Rules 2002 to the Family Court at Palmerston North for access to the Court file in the Family Court Proceedings (the Access Application). The purpose for which access was sought was to examine the files in the Family Court Proceedings, identify which affidavits were missing from the applicant’s records and obtain copies of affidavits relevant to and for use in the criminal proceedings.
[8] Mr Foster also applied for leave under s 11B of the Family Court Act 1980 to use the affidavits in the criminal proceedings (the 11B Application).
[9] The Family Court directed that the Access Application be served on counsel who acted in the Family Court Proceedings and accordingly it was provided to counsel for the second respondent and counsel for the child.
[10] Counsel for the second respondent opposed the Access Application, although this was not communicated to Mr Foster either by counsel for the second respondent or by the Family Court.
[11] By memorandum dated 21 February 2018, counsel for the child noted the suppression provisions which would apply to the criminal proceedings and that the Crown did not oppose the Access Application. He did not oppose it on the basis there were adequate measures put in place to restrict publication of material which could lead to the identification of P.
[12] By Minute dated 23 February 2018, Judge D G Smith declined the Access Application (the Decision). He said:
Upon review of the application, the Minute of Her Honour Judge Moss 07 December 2017, and the concerns raised by counsel for the applicant and lawyer for the child the application for access to Family Court Documents is declined.
[13] The matter came before Judge Rowe on 28 February 2018 because Mr Foster applied for an adjournment of the criminal trial then due to commence on 5 March 2018. The adjournment was sought following the Decision and the applicant’s intimation he intended to seek judicial review. Relevantly, Judge Rowe recorded the position as follows:
[8] The Crown consents to Mr Foster’s application to adjourn the trial. The Crown accepts that the information Mr Foster seeks may be relevant to issues that will arise at trial and the defendant’s fair trial rights.
[9] In the circumstances, it would be unreasonable to proceed with the trial next week. Given the Crown position, there is an appreciable risk of a miscarriage of justice without the issues of the defendant’s access to the Court file, and the ability to use evidence arising from Family Court proceedings having been finally determined. …
[14] The Decision involved the Judge exercising a statutory power of decision and it is therefore amenable to judicial review.
Grounds of review
[15]The application for judicial review was made on the following grounds:
(a)The Judge failed to take into account relevant considerations, being:
(i)that the Family Court was required to grant access to a party to the Family Court Proceedings or a lawyer acting for a party to the Family Court Proceedings.
(ii)alternatively, the Judge was required to assess whether the Access Application was made by a person with a genuine and proper interest in the Family Court Proceedings and the purpose of the Application.
(iii)the Judge failed to take into account that the Access Application was made on the applicant’s behalf as a party to the Family Court Proceedings and he therefore had a right of access; Mr Foster as lawyer acting for a party to the Family Court Proceedings had a right; alternatively Mr Foster had a genuine
and proper interest in the Family Court Proceedings by reason of his role as counsel in the criminal proceedings; the purpose of the Access Application was to enable cross-examination on critical matters of relevance in the criminal proceedings and the Judge failed to consider the applicant’s right to present a defence, to cross-examine witnesses for the prosecution, and to have adequate time and facilities to prepare a defence.
(iv)in refusing the 11B Application, the Judge failed to take into account the purpose of s 11B and the provisions of ss 203 and 204 of the Criminal Procedure Act 2011, whereby the second respondent and children’s names are automatically suppressed.
(b)The Judge took into account irrelevant considerations, being:
(i)the second respondent’s opposition when that opposition failed to address the criteria governing the Access Application;
(ii)ostensible concerns of counsel for the child when he did not in fact oppose the Access Application; and
(iii)the Minute of Her Honour Judge Moss dated 7 December 2017 when that Minute did not address any matters relevant to the Access Application.
(c)The Decision was substantively unreasonable in light of the purpose for which the Application was made.
[16] The applicant also claimed a breach of natural justice but, in the absence of a contradictor, elected not to proceed with this ground of review.
[17] The application for judicial review had some urgency, given the criminal trial will commence on 9 July 2018.
[18] The first respondent abides the Court’s decision and was excused from further attendance.
[19] Counsel for the second respondent participated in a telephone conference with her Honour Justice Cull on 13 June 2018, where she accepted that the documents sought in the Access Application should, as a matter of law, be released. The concern of the second respondent was based on her need to protect her children from any unlawful distribution of material. Counsel for the second respondent filed a memorandum abiding the Court’s decision.
Submissions
[20]Mr Ewen, for the applicant, identified the following issues:
(a)Was the Access Application to be considered as an application by the applicant?
(b)Was the Access Application to be considered as an application by a lawyer acting for a party to the Family Court Proceedings?
(c)Was the Access Application to be considered as an application by a person with a genuine and proper interest in the Family Court file?
(d)Would use of documents from the Family Court file in the criminal trial constitute publication within the meaning of s 11B of the Family Court Act 1980?
[21] Given the absence of a contradictor, Mr Ewen responsibly attempted to address wider policy considerations underlying the Family Court’s confidentiality provisions, although, in the context of an urgent application, his submissions were not as comprehensive as he would have liked.
[22] Mr Ewen referred to the significance of a change in the wording of rr 427 to 429 of the Family Court Rules 2002 which occurred in 2014. Rule 427 currently provides:
427 Access to documents and court files during first access period
(1)Only the persons specified in subclause (2) are entitled to have access to a document or court file during the first access period.
(2)The persons referred to in subclause (1) are—
(a)a party to the proceedings:
(b)a lawyer acting for a party to the proceedings:
(ba)a lawyer appointed to represent a child or young person in the proceedings:
(bb) a lawyer appointed to assist the court in the proceedings:
(c)any of the following persons in relation to proceedings under the Oranga Tamariki Act 1989:
(i)[Revoked]
(ii)[Revoked]
(iii)a lay advocate appointed to appear in support of a child or young person who is the subject of the proceedings:
(iv)a care and protection co-ordinator:
(v)a youth justice co-ordinator:
(vi)the Children’s Commissioner, or a person authorised by the Children’s Commissioner to act on behalf of that Commissioner:
(d)a person who has been permitted access to a document or court file on an application made under rule 429.
(3)Despite subclause (1), a person referred to in subclause (2)(a) to (c) may not have access to a document or court file if—
(a)to allow the person access to the document or court file would contravene any order or direction of the court; or
(b)the Registrar considers that there is some special reason why the person should not have access to the document or court file.
(Emphasis added)
[23]Prior to 2014, r 427(1)(b) referred to:
[A] lawyer on the record as acting for a party to proceedings.
[24] In Mr Ewen’s submission, the change in wording was important and implicitly widened the scope of access to those with a direct professional connection to the parties who would nevertheless be governed by the bounds of their professional responsibility. In his submission, there was ample justification for extending the right of access to lawyers acting in other capacities for parties in Family Court proceedings. He pointed out, for example, that lawyers in non-contentious practice may also require access to Family Court files to advise on matters such as property transactions and estate planning.
[25] In Mr Ewen’s submission therefore, Mr Foster, as the applicant’s lawyer, had a right of access under the Family Court Rules.
Analysis
[26] The Access Application was made pursuant to r 429 of the Family Court Rules which provides:
429 Application for permission to access documents or court files
(1)Any person may apply to the court for permission to access a document or court file—
(a)during the first access period; or
(b)during the second access period.
(2)An application under this rule is made by letter to a Registrar and must—
(a)identify the document or court file that the applicant seeks access to; and
(b)state what access is sought to that document or court file by the applicant; and
(c)explain the purpose for which the applicant seeks that access to the document or court file.
(3)On receipt of an application made under subclause (2), the Registrar may,—
(a)if the Registrar considers that the applicant has a genuine and proper interest,—
(i)make an order permitting the applicant access to the document or court file; or
(ii)direct that the application be treated as an interlocutory application on notice; or
(b)if the Registrar is in doubt as to whether to make an order or direction under paragraph (a), refer the application to a Judge; or
(c)if the Registrar considers that the applicant does not have a genuine and proper interest, decline the application.
(4)When an application is referred to a Judge under subclause (3)(b), the Judge may,—
(a)if the Judge considers that the applicant has a genuine and proper interest,—
(i)make an order permitting the applicant access to the document or court file; or
(ii)direct that the application be treated as an interlocutory application on notice; or
(b)if the Judge considers that the applicant does not have a genuine and proper interest, decline the application.
(5)When making an order or direction under subclause (3)(a), a Registrar may decide to make that order or direction subject to such terms and conditions as the Registrar thinks fit.
(6)When making an order or direction under subclause (4)(a), a Judge may decide to make that order or direction subject to such terms and conditions as the Judge thinks fit.
[27] The fact the Application was made under r 429 rather than r 427 might well explain why the Application followed the path it did, including seeking the views of the second respondent and counsel for the child.
[28] When the provisions of r 427 are considered, it is clear that the Decision was plainly wrong or unreasonable. The applicant had a right to access to the Court file as a party to the proceedings. Without needing to engage on the apparent extension of a right of access given the amendment to r 427(2)(b), the Access Application could simply be viewed as Mr Foster, as agent for the applicant, seeking the access to which the applicant was entitled.
[29] Alternatively, if the matter is considered under r 429, there can be no dispute that Mr Foster had a genuine and proper interest in seeking access and it was
unreasonable to refuse it. The Court of Appeal, in considering the use of Family Court documents in cross-examination in a criminal trial in R v Y, said the following:2
[33] We agree … that at the very least the complainant should have been directly challenged about why, having specifically raised the day on which the rape occurred and “serious issues” concerning the appellant, she did not mention the rape. Given that defence counsel already had a copy of the affidavit from the appellant’s Family Court file, it should not have been necessary to take steps under rr 424–434 of the Family Court Rules 2002 to use the document. Even if that was not the case it is inconceivable that permission to search the Family Court file, and use documents from it in the criminal proceeding, would have been denied when the parties to the Family Court proceeding are also parties to the criminal proceeding and the interests of justice required the documents to be available for the criminal proceeding.
[30] The circumstances of the Access Application are analogous. The second respondent’s affidavits in the Family Court Proceedings do not refer to the sexual offending alleged in the criminal proceedings. It would be a serious miscarriage of justice to restrict the applicant’s access to the affidavits in the Family Court Proceedings in those circumstances.
11B Application
[31] The 11B Application sought leave to use the affidavits in the criminal proceedings.
[32] For myself, I doubt that use in the criminal trial of the affidavits which had been filed in the Family Court Proceedings would constitute publication of “a report of proceedings in the Family Court” as governed by s 11B of the Family Court Act 1980. I note the Court of Appeal did not address s 11B in the case of R v Y.
[33] In Simes v Legal Services Commissioner,3 Collins J did not consider the provision of documents in Family Court proceedings to the Legal Services Commissioner infringed s 11B. He considered the Legal Services Commissioner’s interest in the information was objectively legitimate and the information sought was relevant and necessary to the Commissioner’s statutory duty.
2 R v Y [2009] NZCA 114.
3 Simes v Legal Services Commissioner [2017] NZHC 2331.
[34] Collins J referred to the approach of Ellen France J, writing for the Supreme Court in ASG v Hayne:4
[79] … The section [s 200 of the Criminal Procedure Act 2011, name suppression] does not encompass the dissemination of information to persons with a genuine need to know or, as the Court of Appeal put it, “a genuine interest in knowing”, where the genuineness of the need or interest is objectively established.
[35] Accordingly, the appropriate way to approach this matter, if indeed use of the affidavits constitutes publication of a report of proceedings in the Family Court, is to recognise that the District Court at Palmerston North in its criminal jurisdiction has a genuine need to know, on an objective basis, about the Family Court Proceedings.
[36] Finally, protection of the identity of the various parties is covered by the suppression provisions in the Criminal Procedure Act 2011. These provisions mean the identity of the second respondent and her children will be subject to suppression and there is therefore no concern in this regard.
Result
[37]For the reasons given, I made the following orders:5
(a)quashing the Decision;
(b)remitting the matter back to the Registrar of the Family Court at Palmerston North, with the directions that:
(i)under r 429 of the Family Court Rules 2002, the applicant, personally or through counsel, may access the files in the Family Court Proceedings, FAM-2015-054-000042 and FAM-2016-077-000056; and
4 ASG v Hayne [2017] NZSC 59, [2017] 1 NZLR 777 at [79] (citations omitted).
5 I directed the order to lie in Court until fees in respect of the first amended statement of claim and hearing fees were either waived or paid. That matter has subsequently been resolved with notification of a fee waiver.
(ii)the applicant, personally or through counsel, may obtain copies of the documents on the files for use in the criminal proceedings, subject to any directions or rulings of the District Court at trial and, in particular, regarding suppression of the child’s name; and
(c)there is no order as to costs.
Thomas J
Solicitors:
J H West, Paraparaumu for Applicant
Crown Law, Wellington for First RespondentNgapo-Lipscombe Law, Tokoroa for Second Respondent
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