NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing- judgments/	
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2024-404-864
[2024] NZHC 3418	

UNDER	section 177 of the Family Violence Act 2018	
BETWEEN	COMMISSIONER OF POLICE
Appellant	
AND	A
First Respondent	
AND	B
Second Respondent	

Hearing:	11 September 2024	
Appearances:	S S McMullan for appellant
T A Simmonds KC for first respondent J T Graham for second respondent	
Judgment:	15 November 2024	

JUDGMENT OF JOHNSTONE J

This judgment was delivered by me on 15 November 2024 at 4.45 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
MC, Auckland
Holmden Horrocks, Auckland

COMMISSIONER OF POLICE v A and B [2024] NZHC 3418 [15 November 2024]

[1]	The first respondent (who I will call Ms A) and the second respondent (who I will call Mr B) were engaged in proceedings under the Family Violence Act 2018 in the Family Court at Pukekohe. During a three-day hearing, it became apparent that Mr B had referred an affidavit sworn by Ms A (the Affidavit), which she had filed in support of her application in that Court for a protection order, to the police. Mr B had referred the Affidavit to the police because, he said, it contains lies. Relying on the Affidavit, and following investigation and the receipt of legal advice, the police have charged Ms A with perjury.

[2]	On the last day of the hearing, the Family Court Judge made orders (the Orders):

(a)	in the nature of a declaration, that New Zealand Police hold “any documents belonging to [the] Family Court file … unlawfully”, as do “any other persons holding [such] documents”;

(b)	requiring New Zealand Police to return to the Family Court any paper copies of “documents … belonging to this file”, and to destroy any electronic copies; and

(c)	requiring New Zealand Police to make all reasonable enquiries and efforts to ensure that any other independent persons or bodies that have had such documents distributed to them, likewise, return the paper copies and destroy electronic copies.

[3]	As a person prejudicially affected by these Orders, the Commissioner of Police is entitled, under s 177(3) of the Family Violence Act, to appeal. He does so. The Orders have been stayed by consent in the meantime.1

[4]	The Orders were made on the premise that, when Mr B referred the Affidavit to the police, he breached s 11B(3) of the Family Court Act 1980. And that, when the police referred the Affidavit to third  parties,  they  also  breached  s  11B(3).  Section 11B(3) provides that, in proceedings such as those between Ms A and Mr B,

1	Minute of Lang J in this proceeding dated 20 May 2024.

“a person may not, without the leave of the court, publish a report of proceedings in the Family Court that includes identifying information”.

[5]	“Identifying information” includes the names and identifying particulars of the parties,2 which of course the Affidavit will have stated. And the Commissioner acknowledges that to publish an affidavit filed in proceedings in the Family Court involves publishing a “report” of those proceedings.3

[6]	However, the Commissioner submits that providing the Affidavit to the police does not amount to “publication”. The Commissioner says:

(a)	Drawing from relevant case law, in particular the Supreme Court’s judgment in ASG v Hayne,4 s 11B(3) does not prohibit disclosure of documents filed in Family Court proceedings, without leave of the court, to persons with an objectively established, genuine need to know or interest in knowing, such matters.

(b)	Given the statutory and common law duties of police to enforce the criminal law, they necessarily had an objectively established, genuine interest in receiving the Affidavit. As did the third parties to which the police have provided copies, or at least substantial detail of the Affidavit’s contents: their legal advisors, the Independent Police Conduct Authority, and the District Court at Manukau.

(c)	Accordingly, the police and the third parties do not hold the Affidavit unlawfully. The Orders should be quashed.

Jurisdiction on appeal

[7]	As an appeal under s 177 of the Family  Violence  Act,  the  High  Court Rules 2016 and ss 126 to 130 of the District Court Act 2016, with all necessary

2	Family Court Act 1980, s 11C.
3	Newsroom NZ Ltd v Solicitor-General [2024] NZCA 101, [2024] 2 NZLR 216 at [61], [86] and [105], citing with approval Television New Zealand Ltd v Solicitor-General of New Zealand [2008] NZCA 519, [2009] NZFLR 390 at [54].
4	ASG v Hayne [2017] NZSC 59, [2017] 1 NZLR 777 at [79].

modifications, apply as if this were an appeal under s 124 of the District Court Act.5 Accordingly:

(a)	The appeal is by way of rehearing.6

(b)	I may make any order I think fit.7

(c)	I may direct the Family Court to consider, whether for the first time or again, any matters.8 And I may give the Family Court any direction I think fit relating to consideration of such matters.9

Issues for consideration

[8]	In light of the Commissioner’s argument, I will consider the following issues:

(a)	Does s 11B(3) prohibit the publication of reports of Family Court proceedings, without leave of the court, to persons with an objectively established, genuine need to know or interest in knowing, such matters?

(b)	Given the statutory and common law duties of police to enforce the criminal law, did they necessarily have an objectively established, genuine interest in receiving the Affidavit?

(c)	What consequential orders and directions, if any, should be made?

[9]	I will do so after review of the background circumstances and the Judge’s analysis.

5	Section 177(4).
6	District Court Act 2016, s 127 and High Court Rules 2016, r 20.18.
7	Section 128(1)(c) and r 20.19(1)(c).
8	Section 128(1)(b)(ii) and r 20.19(1)(b)(ii).
9	Section 128(3)(b) and r 20.19(3)(b).

Background

Evidential foundation

[10]	The evidential foundation for the appeal is as set out in:

(a)	the oral judgment of 19 February 2024 which culminated in the Orders (the Orders Judgment);

(b)	the reserved substantive judgment of 30 May 2024, relating to cross-applications by Ms A and Mr B for protection orders, and for orders under the Care of Children Act 2004 (the Substantive Judgment); and

(c)	affidavits of Police Inspector Diane Lane dated 15 March 2024 and    2 August 2024.

[11]	I have received Inspector Lane’s affidavits without opposition on the part of Ms A or Mr B, granting leave that they be filed because the Commissioner’s limited opportunity to offer evidence prior to the Judge’s ruling provides special reason for receiving them.10

Narrative

[12]	Ms A and Mr B met in early 2020 and commenced a de facto relationship. The relationship became strained. Attempting to improve matters, the couple married on 26 November 2022.

[13]	However, on 28 November 2022, they argued, and Mr B complained to the police that Ms A had assaulted him. Given Ms A’s employment as a police officer, Mr B’s complaint was referred for investigation to the Police Professional Conduct Group of which Inspector Lane is a manager.

10	High Court Rules, r 20.16.

[14]	On 30 November 2022, Ms A applied urgently to the Family Court for various orders, including protection and parenting orders, filing the Affidavit in support. The orders sought were granted without notice to Mr B.

[15]	Mr B obtained a copy of Ms A’s Affidavit. Commencing in December 2022, he approached the police a number of times expressing his concern over the Affidavit’s contents. He provided the police a copy, along with various screenshots of text messages and social media posts, and alleged that the Affidavit contains lies.

[16]	On 7 March 2023, Mr B gave a formal  statement  to  a  member  of  Inspector Lane’s team. As had been the case with Mr B’s 28 November 2022 complaint of assault, the matter was referred for both employment-related and criminal investigation.

[17]	Mr B’s 28 November 2022 complaint of assault led to the police filing charges against Ms A, of assault and wilful damage, on 13 March 2023. Mr B’s 7 March 2023 complaint of perjury led to the police filing two charges of perjury, on 5 December 2023. Prosecuting police applied to join the perjury charges to the assault and wilful damage charges. The Manukau District Court, where the charges were filed, has adjourned them pending determination of this appeal.

The Judge’s Orders

[18]	The three-day hearing of cross-applications for final protection orders, and parenting and related orders, during which it became apparent to the presiding Family Court Judge that Ms A had been charged with perjury,  took place on 13, 14 and     19 February 2024. On 19 February 2024, Inspector Lane attended the hearing at what the Family Court Judge described as his request “to explain the basis upon which the police believe they are entitled to use documents belonging to this court for a prosecution against [Ms A]”.11

11	Orders Judgment at [13].

[19]	The exchange between the Family Court Judge and Inspector Lane has been transcribed. Inspector Lane having confirmed that Ms A had been charged with perjury in respect of her Affidavit, the following exchange took place:

Q. … On what basis do the police say they are entitled to a copy of that affidavit?

A.  So we received a formal complaint of perjury from [Mr B] and from  their part of the evidence, supporting evidence he had, he supplied a number of different documents and one of which those was the affidavit application that [Ms A] had made initially in court for —

Q.	Okay.

A.	Yep.

Q. Let me re-ask the question. So  [Mr  B]  provided  you  with  the affidavit?

A.	Correct.

Q. On what basis do the police say, and you may or may not be able to answer this, the police are entitled to retain a copy of a document from this Court’s file?

A. So the affidavit, I  understand, is provided to him  as the respondent  when the protection orders — interim orders were provided and it was part of his allegation, his statement that he made to us, that it was provided.

Q.    So you’re saying that because [Mr B] gave it to the police, they can   use it for the prosecution?

A.	Yes.

Q.	Because I disagree.

A.	Okay.

Q.  And I'm going to making a ruling on the matter now,  so that might   assist you and I’m going to be asking that my ruling be served on the (inaudible 11:47:25). All right, do you have any other questions?

A.	Um-

[20]	Following further discussion about the police engaging with and providing copies of the Affidavit to legal advisers and the Independent Police Conduct Authority, the Judge proceeded to issue the oral Orders Judgment.

[21]	In doing so, the Judge first observed that the Affidavit in respect of which Ms A had been charged with perjury was “of course ... a document that belongs to this court”.12 In this regard, the Judge mentioned his concern that “the charges would relate to statements that were yet to be tested by this court. The [A]ffidavit belongs to this court, it is this court’s independent function to consider the matters before it.”13

[22]	The Judge proceeded as follows:

[4]	The Family Court is a closed and private court. It is imperative that parties coming to this court for relief have confidence in its privacy. If this court finds that there are statements of a nature that the crime of perjury may have been committed, then it is within the discretion of this court to make a referral to the police to consider a prosecution. It cannot go the other way because that would allow outside interference with this court’s independent judicial function. These are crucial safeguards which govern the operation of the Family Court.

(Footnote omitted.)

[5]	There are legislative safeguards set out in the Family Court Act 1980, at section 11B through to 11D.

[23]	The Judge referred, in particular, to s 11B(3), which provides that in proceedings such as those between Ms A and Mr B, “a person may not, without the leave of the court, publish a report of proceedings in the Family Court that includes identifying information”. And the Judge expressed his view that the Affidavit had been distributed to the police without leave, and in breach of s 11B(3).

[24]	The Judge referred to his concern about “the serious impact that the distribution of documents belonging to this court file has had on the people that I am dealing with”, noting that he intended to comment further on this topic when issuing the Substantive Judgment.14 And the Judge proceeded to make the Orders set out at [2] above “in the meantime”.

[25]	The Judge indeed returned to these matters in his Substantive Judgment. There, the Judge observed that he generally preferred Ms A’s account of events in the course of the relationship to that of Mr B, and found that Mr B had inflicted family

12	At [2].
13	At [3].
14	At [20].

violence against Ms A, including, since their separation in November 2022, in the form of “systems abuse”.15 Systems abuse was described as the manipulation of the legal system by perpetrators of family violence, to exert control over, threaten and harass a current or former partner.

[26]	The Judge found Mr B had engaged in systems abuse, including by: filing an array of documents in the course of the Family Court proceedings designed to unsettle and worry Ms A; undermining her relationships with her legal advisors; publicising their private matters, and harassing her online; attempting to manipulate her support network from Shine and Woman’s Refuge; reporting alleged child abuse by Ms A to Oranga Tamariki; breaching and testing the boundaries of the temporary protection order in Ms A’s favour; and by engaging the police.

[27]	Having made these findings, and consequentially granting a final protection order against Mr B in favour of Ms A, the Judge turned to the “issue of the prosecutions against [Ms A] in light of my concern as to how they have come about”.16 The Judge said:

[214]	… I do not consider the perjury charges are warranted, and I am concerned that they have come about as a result of a misunderstanding of the boundaries between the functions of the police and the functions of this court.

[215]	Having considered [Ms A’s] evidence including her viva voce evidence as it was tested in the hearing before me, I do not see that she has intended to mislead the court in any way. In fact, I found her to be a reliable and credible witness.

(Footnote omitted.)

[216]	I accept that not all of [Ms A’s] statements were completely accurate.
…

[217]	… I have considered the circumstances of the parties at the time the urgent order was made, and the making of a temporary protection order was entirely appropriate. The gap between any statements by [Ms A] that may not have been entirely accurate, and the precise account was not the difference between the granting of the temporary protection order or not. [Ms A] provided an account of her situation which was essentially correct. It was accepted by the duty judge as establishing a need for urgent orders, and this was the correct decision.

…

15	Substantive Judgment at [121].
16	At [211].

[219]  Even if I were wrong, it should only be in certain circumstances that  a prosecution for perjury arises from Family Court proceedings, and this would not be one of those circumstances.

[28]	Developing that last point, the Judge cited the practice of Family Court Judges on occasion referring “false or misleading statements to the police for prosecutorial discretion”.17 The Judge observed that:
[230] In the present case I see absolutely no reason at all to refer the matter for consideration of a prosecution. In fact, I go as far as to say that the fact [Ms A] is facing a prosecution for perjury is entirely inappropriate and considering the harm this has caused, the prosecutorial discretion should not have been invoked.

…

[234] Whether [Ms A] has misled this court should have first been determined by this court. Only then should the matter have been referred for prosecutorial discretion. The present case is a stark example of why there must not be any external interference, even by the New Zealand Police, with this court’s independent judicial function of determining the matters before it.

[29]	Returning to s 11B(3), the Judge cited Simes v Legal Services Commissioner and W v Family Court at Palmerston North, and emphasised the reference in those cases to a “genuine need” to know the information concerned.18 And the Judge observed that s 11B(3) otherwise prohibits publication to any external person or entity. Confirming that the police thus did not have a genuine “interest” in the proceeding, the Judge found that it followed that the release of information to the police, and any further distribution by them, was in breach of s 11B(3).

Does s 11B(3) prohibit the publication of reports of Family Court proceedings, without leave of the court, to persons with an objectively established, genuine need to know or interest in knowing, such matters?

[30]	The full text of s 11B is as follows:

11B	Publication of reports of proceedings

(1)	Any person may publish a report of proceedings in the Family Court.

(2)	Subsection (1) is subject to subsection (3).

17	At [221].
18	Simes v Legal Services Commissioner [2017] NZHC 2331 and W v Family Court at Palmerston North [2018] NZHC 1620, [2018] NZAR 1111.

(3)	A person may not, without the leave of the court, publish a report of proceedings in the Family Court that includes identifying information where—

(a)	a person under the age of 18 years—

(i)	is the subject of the proceedings; or

(ii)	is a party to the proceedings; or

(iii)	is an applicant in the proceedings; or

(iv)	is referred to in the proceedings; or

(b)	a vulnerable person—

(i)	is the subject of the proceedings; or

(ii)	is a party to the proceedings; or

(iii)	is an applicant in the proceedings.

(4)	However, subsection (3) does not apply to—

(a)	a report of proceedings in a publication that—

(i)	is genuinely of a professional or technical nature (including a publication that is intended for circulation among members of the legal or medical professions, officers of the public service, psychologists, counsellors, mediators, or social workers); and

(ii)	does not include the name of—

(A)	any person under the age of 18 years who is the subject of the proceedings, or who is referred to in the proceedings:

(B)	any vulnerable person who is the subject of the proceedings:

(C)	any parties or applicants in the proceedings where subsubparagraph (A) or (B) applies:

(D)	any school that a person who is the subject of proceedings under the Oranga Tamariki Act 1989 is or was attending, or any other particulars likely to lead to the identification of that school:

(b)	a publication of statistical information relating to the proceedings.

(5)	The court may grant leave under subsection (3) with or without conditions.

(6)	Every person who contravenes this section commits an offence against this Act and is liable on conviction,—

(a)	in the case of an individual, either to imprisonment for a term not exceeding 3 months, or to a fine not exceeding $2,000:

(b)	in the case of a body corporate, to a fine not exceeding
$10,000.

(7)	Subsection (6) does not limit the power of a court to punish any contempt of court.

(8)	This section is subject to any other enactment relating to the publication or regulation of the publication of reports or particulars of a Family Court proceeding.

[31]	The Court of Appeal discussed s 11B’s legislative history recently in Newsroom NZ Ltd v Solicitor-General.19 The Court observed that, for 24 years following the Family Court’s establishment in 1981, it operated as a closed court. It was not open to the public, and the media was not entitled to be present as of right. Under s 27A of the Guardianship Act 1968, the publication of any “report of proceedings” under that Act, without the court’s leave, was prohibited.20

[32]	However, the Guardianship Act prohibition against reporting was repealed as part of “very significant changes aimed at opening up the Family Court to greater public scrutiny and increasing public understanding of its decisions”.21 Instead, recommendations made in a Law Commission report found expression, first, in the Care of Children Act 2004, and then in 2009 through the introduction of s 11B by amendment of the Family Court Act as a provision applying to all proceedings in the Family Court.22

[33]	The Law Commission’s recommendations were that:23

(a)	Accredited news media representatives should be permitted to attend family proceedings.

19	Newsroom NZ Ltd v Solicitor-General, above n 3.
20	At [58].
21	At [66] (footnote omitted).
22	At [68] and [71].
23	At [67] referring to Law Commission Delivering Justice for All: A Vision for New Zealand Courts and Tribunals (NZLC R85, 2004) at 307.

(b)	There should be no restrictions on the reporting of family proceedings (other than those involving children or domestic violence) unless the court orders otherwise.

(c)	In cases involving children or domestic violence, media reporting of proceedings should be permitted, but details that would identify those involved in the proceedings must not be published unless the leave of the court is obtained.

[34]	Plainly, the recommendation at [33(b)] informed the presumption of open reporting introduced by s 11B(1), and the recommendation at [33(c)] informed the prohibition of reporting identifying information without leave set out in s 11B(2) to (5), including s 11B(3) in particular.

Authorities

[35]	In ASG v Hayne, the Supreme Court addressed the effect of a court order, made under s 200 of the Criminal Procedure Act 2011, forbidding “publication” of the appellant’s identity. The appellant was an employee of the respondent, the Vice-Chancellor of the University of Otago. The University’s Deputy Proctor was present when the appellant was dealt with in the District Court on charges of family violence, and the appellant’s identity was suppressed. The Deputy Proctor nevertheless disclosed the appellant’s identity and details about the charges to university personnel responsible in various ways for the appellant’s employment. The appellant was suspended from his employment while the Vice-Chancellor considered her response, ultimately deciding to issue him with a final written warning.

[36]	The Supreme Court found that:

[79] … the focus in s 200 is, generally, on publication beyond  the  courtroom to the public or a section of the public at large. … The section 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.

(Footnote omitted).

[37]	The Court further found that “given [that] part of the appellant’s employment involved protecting students on campus, particularly at night, his employer had a genuine interest in knowing he had pleaded guilty to an offence of violence against his

spouse”.24 And it observed that the disclosure was “limited to a small group, all of whom can fairly be said to have a need to know this information”.25 Accordingly, the Court found the disclosure not to amount to “publication” of the appellant’s identity.

[38]	As indicated above, ASG v Hayne is an authority upon which the Commissioner relies. Others include the judgments of Collins J in Simes v Legal Services Commissioner and of Thomas J in W v Family Court at Palmerston North.

[39]	In Simes v Legal Services Commissioner, Collins J found that a party to Family Court proceedings might, notwithstanding s 11B(3), provide certain documents filed or obtained in those proceedings to the Legal Services Commissioner.26 Justice Collins’ reasoning was informed by application of the Supreme Court’s approach to s 200 of the Criminal Procedure Act, set out in ASG v Hayne.27 The Judge found that s 11B “does not … apply to the forwarding of information to the [Legal Services] Commissioner by a legal aid party or, their lawyer, where the Commissioner has an objectively genuine interest in receiving that information”.28 The Judge found that the Legal Services Commissioner would have such an interest in certain document types, such as evidential statements.29 Further, s 108(3) of the Legal Services Act 2011 would permit the Legal Services Commissioner to require the party to provide such document types, subject to waiver of “secrecy” by the party in question.30

[40]	Notably, however, Collins J found that the parties could not provide other document types described in the judgment — certain reports commissioned for the Family Court pursuant to the Care of Children Act, the Oranga Tamariki Act 1989, and the Protection of Personal and Property Rights Act 1988, and video recordings obtained by the Family Court pursuant to reg 22 of the Evidence Regulations 2007 — without approval of a court or registrar under r 429 of the Family Court Rules. The Judge found that various provisions of this legislation indicated the Family Court’s

24	ASG v Hayne, above n 4, at [82] (footnote omitted).
25	At [82].
26	Simes v Legal Services Commissioner, above n 21, at [2].
27	At [40].
28	At [41].
29	At [70].
30	At [88] and [97].

retention of control over such reports and recordings, despite the disclosure of copies to the parties. And that they would be more likely to contain more sensitive material.31

[41]	Yet the cited legislation indicative of retained control on the part of the Family Court does not generally32 prohibit onwards dissemination, in the absence of a specific court order to that effect. Implicitly, assuming the mechanism by which onwards dissemination might be subject to general prohibition in the manner described by Collins J is s 11B, the Judge appears to have found that the test outlined in ASG v Hayne did not apply to disclosure of such documents to the Legal Services Commissioner. The reason the Legal Services Commissioner might have an objectively genuine interest in receiving certain document types but not others is not stated.

[42]	In W v Family Court at Palmerston North, Thomas J set aside a Family Court Judge’s decision refusing access to affidavits filed in a Family Court proceeding by a lawyer for one of the parties. The party was awaiting criminal trial on allegations derived from the other party’s complaint. His lawyer had sought access for the purpose of using the affidavits in the course of his criminal defence.

[43]	Justice Thomas set the decision aside because the party and his lawyer had a right of access to the affidavits.33 The Judge went on, however, to refer to the way Collins J in Simes had adopted the Supreme Court’s approach in ASG v Hayne, for the purposes of determining compliance with s 11B(3). In that connection, the Judge observed that the court seized of the criminal proceedings “ha[d] a genuine need to know, on an objective basis, about the Family Court [p]roceedings”.34

Analysis

[44]	For the purposes of this judgment, I am prepared to proceed on the basis that s 11B(3) does not prohibit the publication of reports of Family Court proceedings,

31	At [80]–[85].
32	The exception is the Evidence Regulations 2007, which prohibits the copying of transcripts of child complainants’ video records: r 24(4).
33	Family Court Rules 2002, r 427.
34	W v Family Court at Palmerston North, above n 21, at [35].

without leave of the court, to persons with an objectively established, genuine need to know or interest in knowing, such matters.

[45]	First, ASG v Hayne demonstrates that interpreting a statutory prohibition against publication of information related to proceedings as subject to exception in this manner can be appropriate, where the legislative history and context indicate an intention to preserve a degree of flexibility as to the meaning of that prohibition.35

[46]	Second, as the Supreme Court in ASG v Hayne recognised, this Court, prior to the introduction of s 11B of the Family Court Act, indicated that its predecessor prohibition against report publication in the area of guardianship — the Guardianship Act 1968 (now repealed) — might be correctly interpreted in a similarly restricted way. In Solicitor-General v Smith, a Full Court of this Court adopted the observation of Pankhurst J in Director-General of Social Welfare v Christchurch Press Co Ltd that:36
s 27A [of the Guardianship Act] focuses upon the publication of reports, and its wording is not “apt to capture the bare communication of information to genuinely interested people”.

[47]	Given that indication in the authorities, one might have expected the legislature, if intending the s 11B(3) prohibition on publication without leave to have been absolute, would have clearly said so.

[48]	Third, the decisions in Simes and W v Family Court carry persuasive value. This despite it being arguable, in respect of Simes, that s 108(3) of the Legal Services Act would permit requisition by the Legal Services Commissioner of reports of Family Court proceedings in a manner overriding the application of s 11B(3) of the Family Court Act in any event. And it not being stated in W v Family Court (where the point was obiter) why adoption of the ASG v Hayes approach to s 200 of the Criminal Procedure Act, in line with Simes, was there seen as appropriate to the different context that arises with s 11B(3).

35 See ASG v Hayne, above n 4, at [68].
36 Solicitor-General v Smith [2004] 2 NZLR 540 (HC) at [62] citing Director-General of Social Welfare v Christchurch Press Co Ltd, HC Christchurch CP31/98, 29 May 1998 at 10, and cited in ASG v Hayne, above n 4, at [51].

[49]	Fourth, the respondents were content that, in the context of this case, I should adopt the test for publication outlined in ASG v Hayne.

[50]	In proceeding on this basis, however, I intend to apply the test for objectively established, genuine need to know or interest in knowing, strictly. The legislative history outlined above at [31]–[34], while demonstrating an intention to introduce transparency to Family Court proceedings as far as possible, confirms also that s 11B was intended to ensure that details identifying those involved in the proceedings would not (at least in general) be published without leave of the court.

[51]	Further, the legislative scheme of s 200 of the Criminal Procedure Act and that of s 11B of the Family Court Act are distinct. Section 200 provides for case by case prohibition of publication by court order, subject only to intrinsic limitation or review in accordance with s 208, express exception arising under s 209, or appeal. In contrast, s 11B provides for blanket prohibition of publication pursuant to that provision itself, subject to case by case leave of the court permitting publication. Given the express provision for leave to be considered on a case by case basis, it is appropriate that publication without leave should be permitted only in the most obvious of cases of objectively established, genuine interest.

Given the statutory and common law duties of police to enforce the criminal law, did they necessarily have an objectively established, genuine interest in receiving the Affidavit?

[52]	The Policing Act 2008 confirmed the existence of the Crown “instrument” known as the New Zealand Police.37 The functions of the police under that Act include “law enforcement”.38 And in Ngan v R, the Supreme Court observed that the common law duties of police are extensive, including at their core an “absolute and unconditional obligation” to “take all steps which appear to them to be necessary for keeping the peace, for preventing crime or for protecting property from criminal injury”.39 In this regard, the Court recognised that it is primarily for the Police to determine how they perform these obligations.

37	Section 7(1).
38	Section 9(c).
39	Ngan v R [2007] NZSC 105, [2008] 2 NZLR 48 at [12] (footnote omitted).

[53]	The Commissioner relies on these matters. He says that in order to meet their obligations, the police are required to record, respond to, and, where appropriate, investigate a complaint of alleged criminal offending, particularly where it relates to a serving police officer with a statutory duty to act in accordance with the Police Code of Conduct. The Commissioner submits that the test outlined in ASG v Hayne was therefore necessarily met in the present case because, assessed objectively, the function and obligations of police establish their genuine interest in receiving the Affidavit.

[54]	I disagree. In my view, the Commissioner’s approach does not adequately address the need for the interest of the police in receiving reports of Family Court proceedings to be established objectively, at the point at which such reports are provided to them.

[55]	Here, I take particular account of the phenomenon of “systems abuse”, referred to by the Family Court Judge as the manipulation of the legal system by perpetrators of family violence to exert control over, threaten and harass a current or former partner. While that description is in bold terms, and may not be an endemic feature of Family Court proceedings, it can nevertheless be expected that litigants, engaged in the highly personal and deeply felt emotional conflicts that are a frequent feature of such proceedings, will on occasion be minded to complain to police about what they, subjectively, perceive as inaccuracies in affidavit evidence. In that situation, I do not consider it uniformly to be the case that the police will have an objectively established, genuine interest in receiving the evidence by dint of their obligation to record, respond to, and where appropriate, investigate complaints. They may have such an interest, or they may not. Whether they do draws not only from their constitutional role as a law enforcement agency, but upon the content of the affidavit evidence in question along with objectively apparent circumstances prevailing at the time of the complaint, which are variable.

[56]	Further, I consider the fact that s 11B(3) contains a mechanism by which the publication of allegedly false evidential material to the police might be approved — the mechanism of leave of the court — to support this view. Cases where good, objective cause for a complaint of criminal offending can be observed within the

content of the material for distribution to police might not (subject to application of the test in ASG v Hayne) require such leave. But, given the above, there is an obvious policy reason for leave of the Family Court to be required in marginal cases, for the purpose of avoiding unnecessary interference with its processes.

[57]	In short, I do not agree that, notwithstanding the s 11B(3) prohibition on publication, a disaffected party in any Family Court proceedings may provide the police with an affidavit filed for another party, along with their complaint that, in their view, the affidavit contains lies. The objective basis for that party’s complaint will not be made out in every case.

[58]	My finding on this point reinforces my reservations about the application of the test in ASG v Hayne to s 11B(3). The circumstances in which the test would be met are likely to be at least very similar to the circumstances in which the Family Court should grant leave if sought. The advantage of the test in ASG v Hayne being found not to apply is that it would promote proactive, rather than retrospective, applications for leave, maintaining the ongoing relevance and apparent purpose of the leave requirement.

What consequential orders and directions, if any, should be made?

[59]	As indicated above, this appeal is by way of rehearing.40 I may make any order I think fit.41 I may direct the Family Court to consider, whether for the first time or again, any matters.42 And I may give the Family Court any direction I think fit relating to considering such matters.43

[60]	I consider these matters worth restating because I made the finding at [57] above without referring to the content of the Affidavit, or to the objectively apparent circumstances prevailing at the time of Mr B’s complaint to the police. Neither the police, nor Ms A or Mr B, provided this Court with a copy of the Affidavit. And the basis upon which it might, when provided to the police, objectively have been said to

40	District Court Act, s 127 and High Court Rules, r 20.18.
41	Section 128(1)(c) and r 20.19(1)(c).
42	Section 128(1)(b)(ii) and r 20.19(1)(b)(ii).
43	Section 128(3)(b) and r 20.19(3)(b).

be inaccurate, was not explained. Implicit to my finding is that, if those matters established good, objective cause for Mr B’s complaint, then (subject to application of the test in ASG v Hayne) his report to the police might not have required leave.

[61]	Those matters require revisiting. I intend to direct the Family Court to do so.

[62]	In this connection, it is appropriate that I mention some of the Commissioner’s other criticisms of the Family Court Judge’s approach. The Commissioner submitted that the Judge confused the role of the Family Court with that of the police. The Commissioner accepted that the Family Court may refer matters to the police for potential prosecution. But he suggested that the Judge placed undue weight on this ability when asserting that the prospect of referral “cannot go the other way” (see [22] above), and when going on to infer that the Family Court might be responsible for elements of the exercise of prosecutorial discretion (see [28] above). Further, the Commissioner submitted that practical and policy-related issues arose from the Judge’s finding that the police did not have a genuine interest in prosecuting Ms A for perjury, given his view of the Affidavit and Ms A’s evidence before the Family Court. That is, the hearing took place around 15 months after Mr B alerted the police to the Affidavit. The finding was thus informed by evidence unavailable to the police. And, it would appear, the finding was on the other hand uninformed by the exact nature of Mr B’s complaint and any independent evidence (other than the Affidavit) which might together have made out good cause for complaint to the police.

[63]	In my view, these criticisms are justified. The starting point here is that, as indicated above, the purpose of the introduction of s 11B was to open up the Family Court “to greater public scrutiny” (see [32] above). It is not strictly correct to observe, as the Judge did, that the Family Court is a “closed and private court”. The only basis upon which the parties might justifiably have “confidence in its privacy” is derived from the prohibition established by s 11B(3) against the publication of identifying information in reports of proceedings without leave of the court. Confidence in this level of privacy will be conducive to justice so long as it does not suggest statements may be made in Family Court proceedings with impunity.

[64]	In this regard, I interpret the leave aspect of s 11B(3) as giving rise to a supervisory function of the Family Court, to grant or decline applications for more extensive publication than might otherwise be permitted. The leave aspect does not give rise only to a self-sourced discretion, to be exercised of the court’s own volition, or in accordance with its view of the merits of any complaint about the content of the material for publication. Relatedly, I perceive a difference between the test formulated by the Supreme Court in ASG v Hayne as to genuine “need” or “interest”, and the Family Court Judge’s interpretation of what may amount to such need or interest. That is, the Supreme Court appears to have used the words “need” and “interest” interchangeably (see quote at [36] above). And in emphasising the requirement that such need or interest should be observed objectively, the Supreme Court’s reasoning indicates that the test requires consideration of the nature of the information in question and of the circumstances of the parties, including the third party recipient: issues affecting the standing-related question of “interest”, rather than the merits- related question of “need”.

[65]	Further, in the case of applications for leave to distribute material held by the parties in Family Court proceedings to the police, the Family Court should take account of the statutory and common law duties, and unique responsibilities, of the police. These include the investigation of apparently well-made complaints of breaches of the criminal law, and the making of decisions whether to commence a prosecution following such investigation.

[66]	I therefore take the view that, had Mr B approached the Family Court seeking leave to provide Ms A’s affidavit to the police, setting out good cause on the face of the Affidavit (when put alongside any independent material that Mr B might at that point have called in aid for complaint to the police), the Court’s discretion should then have been exercised in favour of a grant of leave, subject to the Court being aware at that point of grounds to believe the application was made in bad faith or for improper purposes. In that situation, the Family Court would appropriately have been proceeding on the basis that the police can be expected to exercise their obligations as to investigation, and (where justified) prosecution, appropriately. And the Commissioner’s concern that the Judge’s subsequent assessment of the apparent

merits of the proposed complaint of perjury was, for both practical and policy-related reasons, improper, would not have arisen.

[67]	In light of these matters, I consider the Judge should, when alerted to the fact that Mr B had provided the Affidavit to the police, have enquired of him of his specific concerns with its accuracy, and of any independent material (available to him at the time he provided the Affidavit) which might have supported those concerns. The Affidavit having been provided to the police, I consider the Judge should also have heard from them in this regard. The purpose of this enquiry would have been to determine whether the Court should retrospectively have exercised its discretion to grant leave, to the extent necessary, because the conditions outlined in [66] above had been met. I write “to the extent necessary” because, if the test for “publication” set out in ASG v Hayne applies in respect of s 11B(3), leave would not strictly have been necessary, given the individual circumstances of the present case.

[68]	On the other hand, if the enquiry did not satisfy the Judge that the conditions outlined in [66] had been met, the Judge would have had the further benefit of hearing from police, about whether to exercise the Family Court’s power to enforce its refusal of leave to publish the Affidavit to the police44 by making orders for the return of the Affidavit, before doing so. That hearing would have informed the Judge of the additional evidence, if any, upon which the police now rely in support of their criminal prosecution of Ms A for perjury. And the Judge would have been in a better position to assess whether, notwithstanding an apparent breach of s 11B(3), the obvious public interests in favour of independent investigation by the IPCA of apparent misconduct by police officers, and of the prosecution of serious alleged crimes, would have favoured the Affidavit being left with the police rather than returned.

Result

[69]	For the above reasons, I grant the Commissioner’s appeal, and set aside the Judge’s orders described at [2] above.

44 Refer subpt 4 of pt 2 of Contempt of Court Act 2019 which deals with the enforcement of certain court orders. Sections 25 and 26(1) and (2) apply with necessary modifications to proceedings in the Family Court.

[70]	Further, I direct the Judge to convene a hearing at which Mr B and the police should set out their arguments, if any, to the effect that the conditions outlined at [66] would have been met; that is, that had Mr B approached the Family Court seeking leave to provide Ms A’s affidavit to the police at the time he did:

(a)	there would have been good cause set out on the face of the Affidavit (when put alongside any independent material that Mr B might at that point have called in aid of his complaint to the police); and

(b)	there would have been no reason for the court to believe Mr B’s application for leave was made in bad faith or for improper purposes.

[71]	The Judge should hear also from the police in respect of any argument that the evidence now available to them in support of their referral to the ICPA and their prosecution is such as to outweigh the justice interests involved in ensuring s 11B(3) is met.

[72]	Ms A will be entitled to be heard at that hearing.

[73]	The Judge should then determine whether to reimpose his orders requiring return of the Affidavit by police, and, to the extent they can reasonably achieve it, by independent entities to which the Affidavit has been distributed, in light of the observations set out above.

Johnstone J