NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995
AND S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION, PLEASE SEE HTTP://WWW.JUSTICE.GOVT.NZ/FAMILY-JUSTICE/ABOUT- US/ABOUT-THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON- PUBLISHING-JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-2593 [2017] NZHC 758

BETWEEN	LOWE
Applicant	

AND	
AUCKLAND FAMILY COURT First Respondent

WAY
Second Respondent	

Hearing:	10 April 2017	

Appearances:	
S L Abdale for Applicant
A F Todd for First Respondent (abides decision of Court) J E McLennan and S M Dunn for Second Respondent
M K Headifen as lawyer for the child	

Judgment:	
24 April 2017	

JUDGMENT OF LANG J
[on application for judicial review]

This judgment was delivered by me on 24 April 2017 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

LOWE v AUCKLAND FAMILY COURT [2017] NZHC 758 [24 April 2017]

[1]       Mr Way and Ms Lowe met in or about April 2005 and began living together shortly thereafter.    Following  difficulties  in  their  relationship,  they separated  in August 2012. At that stage their son, J, was four years of age.

[2]       Since 2012, Mr Way and Ms Lowe have been involved in protracted and bitter litigation in the Family Court, this Court and the Court of Appeal relating to the care of J.  The litigation has been filed under both the Care of Children Act 2004 (the COCA) and the Domestic Violence Act 1995 (the DVA).

[3]       The present proceeding arises out of five interlocutory decisions made by Judge Burns in the Family Court.  Ms Lowe alleges that in respect of each decision the Judge breached the rules of natural justice in various ways.  She asks this Court to set the decisions aside, and direct that the applications to which they relate be reheard.

The decisions

[4]       The decisions that are subject to the application for review are:

(a)       A reserved  decision  delivered  on  9  August  2016  dismissing  two applications Ms  Lowe  had filed under the DVA (Decision 1) and striking out affidavit evidence filed by Ms Lowe in support of both the COCA and DVA proceedings (Decision 2).1

(b)       A refusal by Judge Burns to recuse himself from continuing to case manage the litigation in the Family Court after Ms Lowe had complained to the Judicial Conduct Commissioner about his conduct (Decision 3).2

(c)	A  decision  contained  in  a  Minute  issued  by  Judge  Burns  on

27 September 2016 in which he directed that a further without notice

application hat Ms Lowe had filed seeking protection orders under the

DVA was to proceed on notice (Decision 4).3

(d)	A Minute issued on 28 September 2016 in which Judge Burns gave reasons for the decision contained in his Minute dated 27 September
2016 (Decision 5).4

An application for leave to amend the statement of claim

[5]       This proceeding was set down several months ago for a two day hearing commencing on Monday 10 April 2017 at 10.00 am.  At 3.40 pm on Friday 7 April
2017, Ms Abdale filed an application on Ms Lowe’s behalf seeking leave to amend the statement of claim and to file an updating affidavit by Ms Lowe.  The proposed amendment reflected the fact that Judge Burns had delivered a decision on 24 March
2017 declining to recuse himself from any further role in case managing or determining the proceedings filed by Ms Lowe (the recusal decision).   Ms Lowe sought to replace the existing cause of action in relation to Decision 3 with a new cause of action in which she alleged that the recusal decision demonstrated apparent bias.

[6]       The lateness of the application can be explained to some extent by the fact that the Judge did not deliver the recusal decision until 24 March 2017.  However, the proposed amendment came on the eve of the hearing.   If permitted, it would significantly reshape the nature of the case the respondents were required to meet.  If leave was granted, the fixture on 10 April 2017 would need to be adjourned to enable both respondents to consider their respective positions in relation to the new allegations.

[7]       I  did  not  consider  this  outcome  to  be  in  the  interests  of  justice.    The remaining allegations that Ms Lowe makes remain capable of argument, and the Court had made time available for that purpose.   In addition, Ms Lowe can either seek leave to appeal against the recusal decision or she can file a fresh proceeding in

this Court seeking judicial review of that decision.  The Court should not be taken as encouraging either of those courses of action, but they are nevertheless available.

[8]       I therefore declined the application for leave to amend the proceeding, but I

granted leave for the updating affidavit to be filed.

[9]       Ms Abdale then elected not to advance submissions on Ms Lowe’s behalf in relation to Decision 3.   In taking that step, she reserved Ms Lowe’s right to take whatever action she thought appropriate in relation to the allegations of apparent bias.

The reserved decision dated 9 August 2016

[10]     This decision was delivered following a defended hearing held on 20 July

2016.  That hearing was convened to consider three applications, two of which had been filed by Mr Way and one by Ms Lowe.  Ms Lowe sought an order granting her leave to apply for variation of existing parenting orders made under the COCA.  This was needed because Ms Lowe was seeking the variation within two years from the
date upon which the orders had been made.5     Mr Way sought an order striking out

the application for variation of the parenting orders.  He also sought an order striking out or editing affidavits Ms Lowe had filed in support of both her COCA application and applications for protection orders she had filed on 21 December 2015 and 1 July
2016 respectively.

Dismissal of the applications for protection orders under the DVA

[11]     The two applications for protection orders were not directly in issue at the hearing on 20 July 2016.  However, the Judge raised them with Ms Abdale, counsel for  Ms  Lowe,  shortly  after  the  hearing  began.    The  following  exchange  then occurred:

THE COURT:

Right, there’s another major hurdle that your client has in relation to the application  under  the  Domestic Violence Act  and that  is  that  it  doesn’t comply with section 9 of the Domestic Violence Act.

5	Care of Children Act 2004, s 139A(1).

MS ABDALE:

Well Sir –

THE COURT:

And so that will have to be addressed and attended to.

MS ABDALE:

Sir, what about section 14?

THE COURT:

There will need to be an application to have a representative appointed for the child and your client is in a conflict of interest situation, so somebody else will have to be put in that position.  There will need to be an application for consideration before the proceedings under the Domestic Violence Act can proceed further.  (inaudible 10:23:37) that the primary allegations are in relation to the safety of the child rather than your client’s safety, although she  does  refer  to  historic  issues.   Whether  those  historic  issues  are  res judicata or not, I don’t know, I’ll obviously have to hear argument about that, but –

MS ABDALE:

That’s the context, Sir, the historical context, and under section 145 it says where there has been domestic violence and there has been proven domestic violence, and also section 145 of the Domestic Violence Act, Sir, says, “the applicant or child,” and so the application was brought upon the basis –

THE COURT:

There’s no doubt that violence to a child can provide grounds under the Domestic Violence Act, it’s just that section 9 requires an application for a representative to be appointed for the child.  There has been quite a lot of case law on who that representative should be, and my view is that it’s usually, particularly in a highly conflictual situation like this case, not appropriate for your client to be that representative because of a conflict of interest.  It needs to be somebody else.

MS ABDALE:

Even when she’s an eligible person to bring an application to safeguard her
child?

THE COURT:

Well that’s for you to advise her, and if she wishes to bring such an application obviously it has to be heard and determined, that’s entirely up to her.  If she considers that she’s the appropriate person, that’s fine.  So we’ve got two options, we can sever the allegations in relation to the child and say that they don’t proceed until there’s an appointment of a representative, and then proceed with the allegations relating to your client only, or wait until there’s a representative appointed and have them heard at the same time.

MS ABDALE:

Sir, I’ll need to take instructions on that, because of course …

THE COURT:

Okay, well I’m just pointing out to you those are hurdles that will need to be addressed.  But let’s put that all to one – the domestic violence proceedings to one side, because Mr McLennan is saying that he needs to think about it and we can proceed.  You’re looking for a ruling on the order because the
139A, the 170 and the 140 issues are all intertwined.

[12]     It is clear from this exchange that the Judge considered that Ms Lowe had filed proceedings under the DVA on J’s behalf when she had not been appointed as J’s representative under s 9 of the DVA to do so.  Furthermore, the Judge obviously did  not  consider  that  Ms  Lowe  was  an  appropriate  person  to  be  appointed  as J’s representative for that purpose.

[13]     However, it is equally clear that the Judge was putting those issues to one side and was moving on to consider the three applications that were before him. Neither party would have been under the impression that the Judge was about to reach any final determination on the future of the DVA applications.

[14]     When the Judge delivered his decision, however, it contained the following passages:6

Domestic Violence Act proceedings

[42]      The applicant has filed an application for a protection order with affidavits in support.  The large volume of affidavits filed by her, as referred to in this judgment,  are in  support  of an application  under the  Care of Children Act.  The affidavit evidence filed by her alleges that the child has been the recipient of violence.  She does refer to historical issues of violence between herself and the respondent, however, those issues are res judicata and there is no prospect of success on persuading the Court to grant her a protection order based on historical issues of violence, bearing in mind that the parties have been apart for a long period of time and the second limb test of  necessity  could  not  be  satisfied.    The  issues  which  she  has  raised, however, on behalf of the child do need to be examined.  The difficulty is that she has not complied with s 9 Domestic Violence Act. Affectively [sic], she is bringing the application for protection order on behalf of her son.  I set out s 9 Domestic Violence Act 1995 in full as follows:

9          Applications by minors

6	[L] v [W], above n 1.

(1)        Subject to subsections (2), (2A), and (4), a minor may make an application for a protection order under this Act.

(2)        A minor under 16 years of age must make the application for a protection order by a representative pursuant to rules of Court.

(2A)     Subject to sections 11 and 12, a minor aged 16 years may make an application either on his or her own behalf under subsection (4), or by a representative pursuant to rules of court.

(3)        Nothing in subsection (2) or subsection (2A) of this section prevents a minor under the age of 17 on whose behalf an application for a protection order is made by a representative from being heard in the proceedings; and where the minor expresses views on the need for and outcome of the proceedings, the court must take account of those views to the extent that it thinks fit, having regard to the age and maturity of the minor.

(4)        Subject to sections 11 and 12, a minor—

(a)        who is aged 17 years or over; and

(b)        who wishes to apply for a protection order—

must make the application on his or her own behalf, without a next friend or guardian ad litem, and orders may be made on the application, and enforced, as if the minor were of full age.

[43]      For  a  child  to  make  an  application  for  a  protection  order  a representative has to be appointed.

[44]      In this case, it is clear from the affidavit evidence from the applicant that she relies totally on what the child has said to her is happening between himself and his father in his father’s home or outside it.   There is also reference to the paternal grandfather.  The difficulty for the mother is that she has a very strongly held view about perpetration of violence by the respondent on her.   Her perception is, therefore, strongly coloured by her view of what has happened in the past between herself and the respondent. She is not objective in considering the issues (if any) impacting on the child. She is in a conflict of interest situation.  Judge Adams in Arvidson v Croft [1996] NZFLR 741 noted that in relation to applications by representatives of  children, it may be preferable not to have a parent as a representative to avoid conflicts of interest arising particularly over property and occupation issues.  I do not see on the paperwork file that an application for mother to be appointed as a representative has been filed and, therefore, in my view the application is defective.

[45]      I also consider that it is not appropriate for the mother in this case to be appointed as a representative because of the conflict of interest and her predetermination about the situation of the child in the care of his father.  I, therefore, order that the proceedings under the Domestic Violence Act that have been filed to date are dismissed because of a breach of s 9.   If the applicant wishes to file fresh applications, then, of course, that can occur, but she will have to comply with s 9 of the Act.   I order that she not make application  to  be  appointed  as  representative  because  in  the  highly

conflictual situation that exists in this case with a huge volume of material it would be inappropriate for her to be appointed as the representative of her son.   Someone else who is objective and can consider all the facts appropriately should make an application (if considered appropriate).  That person, of course, will need to be aware that they may be ordered to pay costs if at the end of day the Court finds that there are no grounds for an application for a protection order.   Therefore, any person applying to be appointed as a representative needs to receive independent legal advice from that of the mother.   I point out that rr 89-98 Family Courts Rules 2002 provide the requirements and procedure for appointment.   The Court may appoint a guardian ad litem, or litigation guardian for any person who consents in writing, is not under a disability and who is unlikely to have a conflict of interest with the child.  The application for such an appointment may be made by the proposed appointee, any party to the proceedings or with the leave of the Court any other person an appointment may not be made if a next friend has already been appointed.

[46]    In this particular case, following Mr Headifen’s involvement, I understand the child’s school made referral of the case to Child, Youth and Family.  Therefore, if there are issues of violence impacting on the child (if any), the appropriate statutory agency is making inquiries and determining whether there are any current care and protection concerns.  I understand that those inquiries are underway and, in my view, that is the appropriate vehicle to look at the issues where social workers can make the appropriate inquiries and determine objectively whether there are issues of violence impacting on the child.  I consider that an application by mother effectively on behalf of the child (without being appointed as representative) in a conflict of interest situation effectively makes the child the applicant and puts the child in a very difficult position.  I do not see that is in his best interests and welfare at this stage.  The child’s views can be independently ascertained through his lawyer.

[15]     The Court of Appeal has recently emphasised that it is a serious matter to dismiss a proceeding without giving the party who brings the proceeding the right to be heard.  In Hirstich v The Family Court at Manukau, a Judge of the Family Court had directed that any further proceedings the appellant might file in that Court were to be referred to that Judge in the first instance for assessment having regard to r 194 of the Family Court Rules 2002 (the Rules).7   Rule 194 permits the Family Court to stay or dismiss a proceeding if there is no reasonable basis for it, or if it is frivolous, vexatious or an abuse of the Court’s process.  The appellant had applied to this Court
unsuccessfully for judicial review of that direction.

[16]     The  Court  of Appeal  ultimately dismissed  the  appeal  because  it  did  not consider the direction removed or restricted the appellant’s right to have access to the courts.8   Having reached that conclusion, the Court went on to say:

[28]      We therefore do not accept that the direction has the practical effect for which Mr Hikaka contended. Nevertheless we make two observations about the nature of the process that the direction contemplates. First, a direction of this kind treats Ms Hirstich differently from other litigants in the Family Court by subjecting her proceedings to a form of scrutiny that is not applied  to  others.  Such  a  direction  should  only  be  made  when  clearly justified. Second, the direction appears to contemplate the possibility that a Judge may stay or dismiss proceedings filed by Ms Hirstich in the future without first giving her the opportunity to be heard. Cooper J also recognised the possibility that this might occur.   We consider that such a step would only be justified in exceptional cases. Generally speaking, no proceeding should be stayed or dismissed unless the affected litigant has had an opportunity to be heard.

[17]     In  the  present  case  Ms  Lowe  had  no  opportunity  to  address  the  Judge regarding her ability to bring the DVA proceedings either on her own behalf or on behalf of J.   Having heard argument from Mr Headifen on the point,  I do not consider the issue to be as straightforward as the Judge clearly believed it to be.  In particular, it may be arguable that Ms Lowe is entitled to bring the application on her own behalf but any order the Family Court might make extends also to J.  That is the point Ms Abdale appears to have been attempting to make in the exchange with the Judge set out above.

[18]     Furthermore, although the Judge purported to dismiss the proceeding, he did not state the authority he was relying on to do so.   He used the word “dismiss”, which implies he was relying on r 194.  The Family Court has the express power under r 193 of the Rules to strike out pleadings on its own initiative, but no similar express power is contained in r 194.  Those issues could have been canvassed if the Judge had given Ms Lowe an opportunity to be heard.

[19]     Most importantly, the principles of natural justice required Ms Lowe to have the opportunity to make submissions before the Judge dismissed the proceedings. That is a right enshrined by s 27(1) of the New Zealand Bill of Rights Act 1990.  I do

not consider the present case could properly be described as an exceptional case in which peremptory dismissal of the proceedings can be justified.

[20]     This ground of review has been made out as a result.

The decision requiring affidavits to be removed from the file

[21]     Ms Lowe had filed a large number of affidavits that purported to support both the COCA application and the DVA applications.  Some were sworn by her but many were sworn by other deponents.  Mr Way applied for orders under r 170(1), which permits the Family Court to determine questions of admissibility of evidence at any stage of a proceeding.

[22]     The Judge heard argument about the form and content of the affidavits at the hearing on 20 July 2016.  In the decision delivered on 9 August 2016 he noted that it was difficult to differentiate between the affidavits filed in support of each proceeding.  With three exceptions, the Judge directed that the affidavits filed on Ms Lowe’s behalf were to be removed from the file once the appeal period had expired. The Judge then set out 12 reasons for making that decision.  He also directed that any further affidavits that Ms Lowe wished to file should deal only with issues arising after June 2014.  The basis for that direction was that the Family Court had finally determined all issues arising prior to June 2014, and that decision had largely been confirmed on appeal to this Court.   The Judge therefore considered issues arising prior to June 2014 had been finally determined and should not be revisited in affidavits filed in support of the present application.

[23]     Ms Abdale challenges the Judge’s decision on the basis that the Family Court has traditionally been prepared to admit evidence under s 12A of the Family Courts Act 1980 even though it may not meet the tests of admissibility prescribed by the Evidence Act 2006.  She submits that in such cases the issue will normally be the weight to be placed on the evidence by the trial Judge.  In addition, she points out that  care  needs  to  be  taken  not  to  exclude  evidence  prematurely  because  the relevance of evidence may not be properly apparent until the issues have crystallised at or shortly before the hearing.  Ms Abdale also referred me to several sections of both the COCA and the DVA that she says support her submission that the Judge

erred in ordering the affidavits to be removed.9    Finally, she argues that the Judge effectively changed the shape of the COCA proceeding and pre-determined the case by ordering affidavits to be removed from the file.

[24]     I am not persuaded by Ms Abdale’s arguments under this ground of review. The Judge made the decision to require the affidavits to be removed after hearing full argument from both sides.  He gave reasons for his decision.  In making the decision the Judge was exercising a power expressly vested in the Family Court to determine pre-trial admissibility issues under r 170.  The decision did not pre-determine any issue that will need to be decided at trial because the Judge expressly permitted Ms Lowe to re-file affidavits provided they are in appropriate form.

[25]     Most of Ms Abdale’s submissions are to the effect that the Judge was wrong to do what he did.   The appropriate means of challenging the correctness of a decision is by way of appeal rather than judicial review.  An application for judicial review is not to be regarded as a back door method of asking the Court to exercise its appellate jurisdiction.  That is particularly so when the leave of the Family Court is
required  for  an  appeal  against  an  interlocutory  decision.10       Judicial  review  is

concerned with process rather than final outcome.   I see nothing wrong or unfair about the process the Judge adopted in relation to the affidavits.

[26]     Furthermore, one of the criticisms of the Family Court in the past has been that it has permitted too much evidence to be admitted when the evidence does not satisfy the tests of admissibility under the Evidence Act 2006.  The Judge cannot be criticised in the present case for endeavouring to ensure that Ms Lowe’s affidavits met acceptable standards in terms of relevance and objectivity.  The obvious danger in permitting irrelevant or otherwise unacceptable evidence to remain on a file is that the other party will feel obliged to address it.   The volume of irrelevant and/or unacceptable evidence then mushrooms very quickly.  If the admissibility of affidavit evidence is to be scrutinised, it is therefore far better to do it at an early stage in the proceeding.

[27]     For these reasons this ground of review has not been established.

The decisions made on 27 and 28 September 2016

[28]     I deal with these decisions together because they are closely connected.

[29]     Having received the judgment delivered on 9 August 2016, Ms Lowe filed a new application for a protection order under the DVA on 23 September 2016.  The Registry referred it to Judge Burns for initial directions because it had been filed on a without notice basis.  The Judge issued a Minute on 27 September 2016 holding that jurisdiction to make the application had been established, but that the threshold for
proceeding  without  notice  had  not  been  met.11       The  Judge  directed  that  the

application was therefore to be served on Mr Way.  The Minute also recorded that reasons for the directions would be given in a Minute to be issued the following day. On 28 September 2016, the Judge issued a further and detailed Minute setting out the reasons why the application was to be determined on a without notice basis.12

[30]     Ms Abdale did not press this aspect of Ms Lowe’s claim with any real vigour. That  is  not  surprising,  because  both  of  Ms  Lowe’s  previous  applications  for protection orders had also been filed on a without notice basis.  On each occasion the Judges who initially dealt with them directed that they be made on notice to Mr Way. There was nothing about the third application to suggest it should be dealt with differently.  I therefore see no error of process in the Judge’s decision that the third application should also be determined on notice to Mr Way.

[31]     This ground of review has not been made out.

Should relief be granted in respect of Decision 1?

[32]     My initial impression was that the Judge’s decision to dismiss the first two DVA applications  should  be  set  aside,  and  those  proceedings  reinstated.    Upon reflection, however, I have reached a different view for several reasons.

[33]     First, Ms Lowe’s third application for a protection order remains before the Family Court.  It seeks orders in the same terms as the first two applications.  Ms Lowe is therefore not prejudiced by now being unable to seek the relief she had sought under the first two applications.

[34]     Secondly, Mr Way has applied for an order striking out the current DVA application.   That application will be heard on 21 June 2017.   The strike-out application  is  based  in  part  on  Ms  Lowe’s  continued  failure  to  appoint  a representative under s 9 of the DVA to advance the DVA application on J’s behalf. This is the basis on which the Judge dismissed the first two proceedings.  It follows that Ms Lowe will now have an opportunity to advance the arguments she would have been able to make if the Judge had given her an opportunity to be heard before he dismissed the first two proceedings.

[35]     Thirdly, Ms Lowe has now filed 12 further affidavits in both the current DVA proceeding and  the COCA proceeding by deponents  whose affidavits  the Judge ordered to be removed.  Presumably these comply with the requirements identified by the Judge.   Ms Lowe has therefore been able to place her evidence before the Court notwithstanding the dismissal of the first two DVA proceedings.

[36]     Fourthly, Ms Abdale’s submission that the first two DVA proceedings should be reheard appears to be based largely on Ms Lowe’s desire to be publicly vindicated in respect of the dismissal of the DVA proceedings.  Ms Abdale relies in this context on the approach taken by Harrison J in CLM v Chief Executive of the Ministry of
Social Development.13   In that case the Family Court had made an interim order on a

without notice basis placing the applicant’s unborn child in the custody of the Chief Executive.    Justice  Harrison  granted  an  application  for  judicial  review  of  that decision on the ground that the circumstances did not justify the making of the order in question without giving the applicant an opportunity to be heard.   He held that declaratory relief was appropriate “in recognition of, and to address, the affront to [the applicant], and to serve the salutary effect of requiring future compliance by
statutory authorities”.14

[37]     In the present case Ms Lowe has not sought a declaration.  Instead she seeks an order requiring the original applications to be reheard.   I consider that public vindication of Ms Lowe’s stance can be adequately provided through the terms of the present judgment.   It is not necessary to require the original applications to be reheard in order for Ms Lowe to feel she has been vindicated. That would essentially be a meaningless exercise given the fact that the DVA application now before the Family Court will be determined on a fully argued basis.

[38]     For these reasons I do not propose to grant relief by ordering the first two

DVA applications to be reheard.

Result

[39]     Grounds for review of Decision 1 have been established but I decline to order relief.  Grounds for review of Decisions 2, 4 and 5 have not been established.  I pass no comment on the application for review of Decision 3 because that ground was ultimately not pursued.

Costs

[40]     My initial impression is that honours have been reasonably evenly shared and that costs should lie where they fall.   If either party takes a different view, a memorandum of no more than five pages in length should be filed by the party seeking costs.   I will then give further directions for the filing of memoranda in
response.

Lang J

Solicitors:
Vicki Pomeroy Law, Auckland
Holmden Horrocks, Auckland
Counsel:
S Abdale, Auckland
M K Headifen, Auckland