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IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE	
CIV-2018-470-000052
[2018] NZHC 2763	

UNDER	the Care of Children Act 2004	
IN THE MATTER OF	an appeal against a decision of the Family Court in Whakatane	
BETWEEN	G
Appellant	
AND	N
Respondent	

Hearing:	28 August 2018	
Appearances:	Appellant in Person
L M Ebbers for Respondent E L Ross Counsel for Child	
Judgment:	25 October 2018	

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 25 October 2018 at 9.00 am
pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date………………………..

G v N [2018] NZHC 2763 [25 October 2018]

Introduction

[1]	This appeal arises from proceedings in the Family Court concerning contact arrangements between Mr N and his now five-year-old daughter, A. Mr N’s former partner, Ms G, has had day-to-day care of A since the couple separated in 2013, just months after A’s birth. The case was classified as complex by Judge S J Coyle, who has managed it since September 2017. In March 2018, Ms G filed an application asking that Judge Coyle recuse himself. The Judge declined to do so. Ms G appeals that decision.

[2]	At a telephone conference with Lang J it was agreed that the appeal would be treated as one against a substantive decision under s 143(1) of the Care of Children Act 2004 (CoCA) for which leave is not required.1 The appeal is therefore a general appeal to which the principles of Austin, Nichols & Co Inc v Stichting Lodestar apply.2 It is for Ms G to persuade me that the Judge made an error and, if so, she is entitled to my assessment afresh.

[3]	Ms G is presently unrepresented and appeared at the hearing of the appeal in person. Although fluent in English, it is not her first language. This was evident in both her written and oral submissions; as originally expressed they were prolix and sometimes difficult to follow. Her grounds of appeal can be summarised as being that the Judge:

(a)	wrongly treated the case as involving alienation;

(b)	erred in his assessment of the risk posed by Mr N to A;

(c)	failed to protect Ms G and A from harm by Mr N, including through the use of the legal system;

(d)	enforced contact between A and Mr N when there was a final protection order in place;

1	G v N HC Auckland CIV-2018-470-52 [Minute of Lang J].
2	Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

(e)	wrongly held that Ms G had ‘refused’ to provide evidence of bias on the part of the Judge. In oral submissions, however, Ms G made it clear that the essential complaint was that the Judge was pre-disposed against her and that she would not get a fair hearing in respect of the matters yet to be decided. The argument proceeded on this basis without objection from Mr N’s counsel;

(f)	in making the safety assessment, failed to take into account relevant considerations and took irrelevant considerations into account;

(g)	wrongly concluded that contact with Mr N was in A’s best interests;

(h)	failed to recognise Ms G’s rights under the Domestic Violence Act 1995.

[4]	Only (e) is capable of supporting the appeal against the Judge’s refusal to recuse himself. The other grounds are concerned with the interim parenting orders that have been made in this proceeding. Those grounds might have been advanced in an appeal against those orders but are not apt for the appeal before me.

Relevant principles

[5]	Judicial impartiality is “the fundamental principle of justice”.3 Both the right to an independent and impartial Court, and the right to the observance of the principles of natural justice, are affirmed by the New Zealand Bill of Rights Act 1990.4 They are also reflected in the judicial oath that is taken by Judges on appointment. The oath requires that judges must “… do right to all manner of people after the laws and usages of New Zealand, without fear or favour, affection or ill will”.5 Unless the judicial

3	AWG Group Ltd v Morrison [2006] EWCA Civ 6, [2006] 1 All ER 967 at [6] per Mummery LJ; and see Grant Hammond Judicial Recusal Principles, Process and Problems (Hart Publishing, Portland, 2009) at 5.
4	See ss 25(a) and 27; and Saxmere Co Ltd v Wool Board Disestablishment Company Ltd (No 1), [2009] NZSC 72, [2010] 1 NZLR 35at [87].
5	Oaths and Declarations Act 1957, s 18.

system is seen to be independent and impartial, the public will not have confidence in it and the judiciary who serve in it.6

[6]	A judge has a duty to sit on cases which are assigned to him or her.7 The duty to sit protects judicial independence by preventing parties from “manoeuvring … to improve their chances of having a given matter determined by a particular Judge or to gain forensic or strategic advantages through delay or interruption to the proceeding”.8 The duty to sit does not apply where grounds for disqualification exist. “It is … of fundamental importance that justice should both be done and be manifestly seen to be done.”.9

[7]	In any given case, the question is whether a fair minded lay observer who is reasonably informed about our legal system and about the case before the court would reasonably apprehend that the Judge might not be able to decide the issue before the court impartially.10 This question is to be approached in two stages – first, by identifying the fact or facts that it is said might lead the judge to decide the case other than on its factual or legal merits, and secondly, be testing whether there is rational basis for such a conclusion. What is required is “an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on the merits”.11

[8]	It is not possible to exhaustively identify the factors that might lead to the conclusion that there is a real possibility of bias. Relevantly, however, it is clear that:12

… The mere fact that a judge, earlier in the same case or in a previous case had commented adversely on a party … would not without more found a

6	Saxmere Co Ltd v Wool Board Disestablishment Company Ltd (No 1) above n 4, at [3] and [38]; and see Grant Hammond, above n 3, at 5.
7	Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495 (CA), at [35]– [36].
8	At [35].
9	R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256 per Hewart LJ.
10 Saxmere Co Ltd v Wool Board Disestablishment Company (No 1), above n 4, at [3], [37] and [127]; and see Ebner v Official Trustee in Bankruptcy [2000] HCA 63, (2000) 205 CLR 337, at [6] and Helow v Secretary of State for the Home Department [2008] UKHL 62, [2009] 2 All ER 103 at [1]–[3].
11 Ebner v Official Trustee in Bankruptcy, aboe n 10, at [8]. See also Saxmere Co Ltd v Wood Board Disestablishment Company (No 1), above n 4, at [4], [81] and [93].
12 Locabail (UK) Ltd v Bayfield Properties Ltd  [2000] QB 451 (CA), [2000] 1 All ER 65  at [25].  The Supreme Court in this country endorsed these comments in Jessop v R [2007] NZSC 96 at [6].

sustainable objection … But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal.

Background

[9]	Ms G and Mr N were in a de facto relationship for five years before separating. There was litigation between them about care arrangements for A from the time they separated. Previous applications for parenting orders were discontinued in the expectation that they would agree on suitable arrangements but this did not happen. In June 2016, Mr N filed a fresh application for a parenting order allowing him contact with A. At that stage, he had had no contact with A since the beginning of 2016.

[10]	Mr N’s application was preceded by two incidents which led to him being convicted of assaulting Ms G. She obtained a final protection order as a result. Ms G also alleged that Mr N had smacked A. Mr N initially denied doing so but later admitted to giving A a light smack over her nappy. Ms G has consistently asserted that she and A were both traumatised by these incidents and that A was not safe with Mr N unless supervised. She has been vocal and determined throughout the proceeding that A required counselling for her trauma and should not have contact with Mr N until that had occurred.

[11]	Nevertheless, in December 2016, the parties agreed to interim consent orders being made that would have allowed Mr N to have supervised contact with A. However, it appears that the agreed contact did not eventuate. In February 2017, Mr N applied to vary the consent order and Ms G applied for a direction that a s 133 report be ordered. In March 2017, Judge C L Cook ordered a s 133 report.

[12]	The s 133 report recommended that Mr N have initial supervised contact with A to re-establish the relationship. In August 2017, the parties requested an interim parenting order by consent for initial supervised contact over three weeks, followed by unsupervised contact. Again, the anticipated contact did not occur. The initial supervised contact, which was to be held at a KidzKare centre, was cancelled because A refused to be parted from Ms G. This marked the start of the events that led to the present appeal.

[13]	On 27 September 2017, Judge Coyle convened an urgent telephone conference. In a minute he issued that day, he dealt first with the issue of A’s safety and concluded that A would be safe with Mr N. He regarded the earlier assaults as “minor incidents [that] have been used as a justification to prevent [Mr N] from having a relationship with his daughter”. He then continued:

This case clearly has the hallmarks of the beginnings of alienation (recognising that cognitively [A] cannot be alienated at her age) and I intend to case manage this case in the future to ensure that there is no opportunity for alienation to take root, to grow and to flourish. There is absolutely no reason why this father cannot have decent and unsupervised contact with his daughter apart from the fact that her mother has promoted in her a view that [Mr N] is somehow unsafe. It that view continues, given [A]’s age, it may well be that the option for the Court is to change the care arrangements for [A] to prevent her being further psychologically damaged by what has occurred to date.

[14]	The Judge made an interim parenting order under which Mr N would have supervised contact with A for three weeks followed by unsupervised contact.13

[15]	Contact still did not eventuate. On 3 November 2017, Mr N filed an application  for  admonishment  of  Ms  G.  The  Judge  convened  a  conference  on 7 November 2017. In his decision of that date, His Honour described himself as being “frankly astounded and appalled” that contact had not occurred and spoke in very strong terms about the consequences of non-compliance with court orders.14 I return to this aspect later.

[16]	Three supervised visits took place on 10, 17 and 24 November without incident. On 5 December, the interim parenting order was varied by consent with the effect that unsupervised contact between Mr N and A was increased.15

[17]	Mr N’s application for admonishment was dealt with by Judge Coyle on 17 January 2018.16 The Judge made the order sought. He also made an order that A have overnight contact with Mr N. Although Mr N sought a final order, the Judge made only interim orders, for two reasons. The first was that the issue of holiday contact

13	N v G FC Whakatane FAM-2013-087-329, 27 September 2017 [Minute of Judge S J Coyle].
14	N v G [2017] NZFC 9041.
15	N v G FC Whakatane FAM-2013-087-327, 5 December 2017 [Minute of Judge S J Coyle]..
16	N v G [2018] NZFC 321.

had yet to be determined. The second was that he wanted to be satisfied that Ms G would continue to comply with the orders made.

[18]	On 14 March 2018, Ms G applied to have the Judge recuse himself. This application was made without counsel’s knowledge and Ms G’s counsel promptly sought leave to withdraw. Within days, on 23 March, Mr N applied for day-to-day care of A. On 26 March, Ms G applied for an order suspending all contact between Mr N and A.

Appeal

The decision under appeal

[19]	The recusal application was dealt with at a pre-hearing conference on 27 March 2018 (along with other matters administrative matters, most of which are not relevant to the present appeal. Ms G’s counsel, Ms Northey, was granted leave to withdraw and since Ms G had not attended the conference, Ms Northey’s departure meant that she was unrepresented from that point. Nevertheless, the Judge decided to determine the issue on the basis of Ms G’s written submissions.

[20]	The Judge identified the basis upon which Ms G argued that he should recuse himself:17

[11]	The basis upon which [Ms G] appears to argue that I should recuse myself, as far as I can ascertain is …

(a)	That [Ms G] disagreed with my determination that A is safe in the unsupervised care of N.

(b)	That I have referred to a concept of alienation which she submits is junk science and associated with paedophilia.

(c)	That I have said to [Ms G] that:

(i)	If she continued to breach the terms of the current parenting order, an option could be changing [A’s] day-to-day care.

(ii)	That I raised with her the possibility of a contempt charge against her.

17	N v G FC Whakatane FAM-2013-087-327, 27 March 2018 [Minute of Judge S J Coyle].

(iii)	That I had found she had breached the parenting order and subsequently made a formal order admonishing her.

[21]	The Judge then set out the legal position relating to recusal. He cited the relevant authorities, including Muir v Commissioner of Inland Revenue18 and Saxmere Company Ltd v Wool Board Disestablishment Company (No. 1).19 He noted the passage from the decision of the Court of Appeal in the United Kingdom in Locabail (UK) Ltd v Bayfield Properties Ltd already cited to the effect that an earlier adverse comment about a party or witness would not, in itself, justify recusal:20

[22]	The Judge also noted21 the following passage from the judgment of the Court of Appeal in this country in R v Cullen:22

… It is inevitable that defendants will appear more than once before the same Judge and there may be some happening on a prior occasion which is discreditable to the defendant. Judges are well able to put such things out of their mind, just as juries are expected to do from time to time under proper directions …

[23]	Ultimately, the Judge declined to recuse himself:23

[29]	In my view, a fair and objective observer would not determine that I would act in anything other than a fair and impartial manner. That I have expressed to [Ms G] the consequences of ongoing breaches of Court orders, does not mean that I am therefore biased. It is simply a reflection of reality. For in a democratic society where the rule of law is adhered to, there is a fundamental expectation that when the Court makes an order, parties should comply with it. If a Judge simply sets out, in an effort to educate a party, those consequences that does not meant that that Judge is biased or no longer fair or impartial.

[30]	Whether [Ms G] has or has not breached the terms of any parenting order, is a matter of determination on the facts of any particular allegation and in January of this year, I found for the reasons I set out in my judgment, that she had breached the parenting order and therefore I admonished her. As I set out in the aforementioned cases, the fact that I have made a finding against her does not automatically recuse me from hearing any other matters in relation to these proceedings.

18	Muir v Commissioner of Inland Revenue, above n 7.
19	Saxmere Company Ltd v Wool Brand Disestablishment Company (No. 1), above n 4.
20	Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451, above n 12. See also Jessop v R
above n 12, at [6].
21	N v G, above n 17, at [25].
22	R v Cullen [1992] 3 NZLR 577 (CA) at 580–581.
23	N v G, above n 17.

[31]	Additionally I am well aware of the research which says in high conflict cases where there are concerns about whether a child is being allowed to develop a relationship with his or her father, that there is benefit in consistency of Judge so that there is brought to any evaluative exercise, a longitudinal perspective. My role in case managing this matter is to manage progression of the matter through the hearing, whether I am the hearing Judge or not is a separate issue in relation to the ultimate hearing.

[32]	I therefore find that [G] has refused to establish the grounds as to why I should recuse myself and for the above reasons, I decline to recuse myself.

Decision

[24]	I preface my decision by reiterating the importance of a single judge being able to manage a complex case throughout if that is considered desirable. Consistency of judicial management is a tool that can benefit both parties. Self-evidently, however, cases that are sufficiently complex to warrant management by an assigned judge can be challenging for both the judge and the parties. This is such a case. Ms G is a determined individual, intent on ensuring her daughter’s well-being and with strong views as to what that entails. She is reluctant to accept any decision that does not accord with her views. In this kind of case it may be difficult for a judge to make decisions that are greeted positively by both parties. Sometimes it is necessary for a judge to speak plainly. Parties cannot expect to seek a judge’s recusal merely because the judge has spoken in plain terms and conveyed an unpalatable message.

[25]	Nevertheless, for the reasons that follow, I find that this is a case in which recusal was appropriate because of statements made by the Judge at earlier stages in the proceeding. The first was at the conference on 7 November 2017. This conference followed the unsuccessful attempt at supervised contact on 15 September 2017 and the conference on 27 September at which the Judge made a finding that A would be safe with her father and raised the issue of contempt through non-compliance with court orders. Before going on to make interim orders providing for contact the Judge said:24
[6]	I have given serious consideration today, pursuant of s 49 of the Act, to reversing the care arrangements for [A]. As Ms Ross, [A’s] counsel, points out, that however creates issues for [A] in that she has never lived in her father’s care and it is an option that is fraught with risk although that risk has

24	N v G, above n 13 (emphasis added).

to be weighed against the long-term consequences for [A] in not being able to have a relationship with her father.

[7]	By the very slimmest of margins I have decided to stand back from that course but I intend to make an order which provides that if contact does not occur in terms of this order then [A’s] care arrangements will automatically change.

…

[9]	At this time I propose to also stand back from convening a contempt hearing. There is an application for admonishment before the Court and the decision of Williams J which provides for the Family Court to hold a party in contempt is quite clear that before the contempt remedy is utilised other options need to be explored first. It seems to me that through what I intend to do today together with the admonishment hearing which will occur in due course, those are options that should be explored before reverting to the contempt remedy.

[10]	I want to be quite clear to you, [Ms G], that if you do not comply with this order then you will lose the care of your daughter and, as your lawyer will be able to tell you, I am a Judge who sticks to his word. I have sent parents to jail before for ignoring orders of this Court so do not think you can continue to ignore orders of this Court without there being any penalty. Your daughter needs a relationship with her father and if you stand in the way of that you will lose your daughter because it will be better for her to be in the care of her father, who supports a relationship with you, than to be in your care when you are not supporting that relationship.

[11]	So you have some choices to make here and I understand your daughter will be anxious and upset and distressed at going to see her father, she is nearly five. If she was anxious and distressed and upset at going to school you would send her to school. If she decided that she refused to eat anything you would make her eat her food. You are the parent here so be the parent. She will see her father and you will support that. Nearly five year olds do not dictate their universe, parents do and if you cannot step up to the plate and be her parent and show an appropriate standard of parenting then you have no one to blame for the consequences but yourself. So do not take on this Court because your daughter will lose and you will lose the custody of your daughter. This is your last chance.

[26]	The second was at the hearing on 17 January 2018, when the Judge declined to make final orders. He gave as one of his reasons that:25

… in my view the gaze of the Court needs to be upon Ms G for a bit longer to ensure she is in fact continuing to comply with the order, for as I have indicated before, if the order is not complied with then a remedy available to the Court, only if it is satisfied that such a remedy is in the welfare and best interests of [A], would be a change to her care arrangements. That is an option which must remain live at present.

25	N v G, above n 16, at [29].

[27]	It would have evident to a fair-minded and informed observer that the Judge had become concerned that Ms G was manipulating A so as to obstruct contact between her and Mr N. The Judge had the benefit of reports by lawyer for the child and the s 133 report writer that confirmed the desirability of A having a relationship with Mr N. That information and the history of the litigation provided an objective basis for the Judge to make it clear to Ms G the importance of complying with court orders and the risks of not doing so.

[28]	I do not accept, as Ms G asserted, that the Judge spoke loudly or shouted at her; I have listened to the audio records of the relevant hearings and am satisfied that the Judge’s tone and volume was measured and calm throughout. The comments themselves, however, do give cause for concern. In my view they carried a very real risk of conveying that non-compliance for any reason would result in Ms G losing the day-to-day care of A. In particular, to say to a party “if you do not comply with this order you will lose care of your daughter” would, in my view, be understood by any fair-minded observer as an unmistakeable threat that non-compliance of any kind and to any extent would certainly result in A being removed from Ms G’s care. The risk of this happening would have been understood as especially real because, in Ms G’s mind, the unsuccessful contact had not been the result of deliberateness on her part but of fear on A’s part.

[29]	The problem was compounded by the Judge implying that any non-compliance could result in Ms G being imprisoned. Moreover, the Judge implied that A would be placed in Mr N’s care, which was not even an outcome that Mr N himself was then seeking and which was entirely impractical because Mr N had never had the day-to- day care of A before that.

[30]	The comments the Judge made at the hearing on 17 January 2018 had the effect of reinforcing the effect I have already described. I do not think that the Judge’s retreat from his earlier position by referring to the change in care arrangements occurring “only if … in the welfare and best interests of A” was sufficient to undo the impression given previously.

[31]	It may be that the three very successful supervised visits later in November 2017 might be viewed as vindicating the Judge’s suspicions about why contact had not occurred previously. But that could not alter the effect of the statements made at the hearing on 7 November 2017, which would result in any fair-minded observer having a reasonable doubt that the Judge would manage the other extant applications in this proceeding impartially.

Result

[32]	The appeal is allowed.

P Courtney J