Newton v Family Court at Auckland

• Jurisdiction: New Zealand
• Judge: Goddard J
• Judgment Date: 24 May 2022
• Neutral Citation: [2022] NZCA 207
• Court: Court of Appeal
• Docket Number: CA19/2021

Between

D Newton

First Appellant

L Newton

Second Appellant

and

Family Court at Auckland

First Respondent

R F Von Keisenberg

Second Respondent

B Lake

Third Respondent

and

Attorney-General

Intervener

New Zealand Law Society | Te Kāhui Ture O Aotearoa

Intervener

Between

Family Court at Auckland

Appellant

and

D Newton

First Respondent

L Newton

Second Respondent

B Lake

Third Respondent

and

Attorney-General

Intervener

New Zealand Law Society | Te Kāhui Ture O Aotearoa

Intervener

[2022] NZCA 207

Court:

Cooper, Collins and Goddard JJ

CA19/2021

CA50/2021

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Family — appeals against a High Court decision which set aside an order for a psychological report on children the subject of a parenting order application for contact — relevance of the child's views before obtaining a report — whether psychological reports and reports by a lawyer for a child are amenable to judicial review — Care of Children Act 2004

Counsel:

DAT Chambers QC for First and Second Appellant in CA19/2021 and First and Second Respondent in CA50/21

No appearance for First Respondent in CA19/2021 and Appellant in CA50/2021

V A Crawshaw QC and S M Wilson for Second Respondent in CA19/2021

No appearance for Third Respondent in CA19/2021 and Third Respondent in CA50/2021

A Chan QC, B M McKenna and C N Tocher for Attorney-General as Intervener

ACM Fisher QC for New Zealand Law Society | Te Kahui Ture o Aotearoa as Intervener

A J Cooke as lawyer representing children

CA19/2021

• A The appeal is dismissed.

• B The appellants must pay costs to each of the second and third respondents for a standard appeal on a band A basis with usual disbursements. We certify for second counsel.

• C This Court's file may not be searched by any person without the leave of a judge, which must be sought by written application on notice to the parties.

CA50/2021

• A The appeal is allowed.

• B The proceeding is remitted back to the Family Court to determine whether, in the current circumstances, a psychological report should be obtained under s 133 of the Care of Children Act 2004. In making that determination the Family Court must have regard to this judgment.

• C Costs in respect of this appeal are to lie where they fall.

• D This Court's file may not be searched by any person without the leave of a judge, which must be sought by written application on notice to the parties.

JUDGMENT OF THE COURT

Table of contents

	Para no
Introduction	[1]
Ascertaining the views of a child before making a s 133 order	[5]
Judicial review of s 133 orders	[6]
LFC reports are not amenable to judicial review	[12]
Implications for these proceedings	[16]
Relevant legislation	[18]
Care of Children Act 2004	[19]
Family Court Act 1980	[33]
Family Court (Supporting Children in Court) Legislation Act 2021	[34]
Convention on the Rights of the Child	[38]
The proceedings - an overview	[40]
Application for parenting order by maternal grandmother	[40]
Application for parenting order by maternal grandmother	[43]
First s 133 order	[45]
First judicial review proceeding	[62]
First High Court judgment	[66]
Judge de Jong's October 2018 minute	[68]
Recall application in relation to October 2018 minute	[74]
Second s 133 order	[80]
Second judicial review proceeding	[89]
Second and third High Court judgments	[95]
First High Court judgment	[100]
Second High Court judgment	[113]
Third High Court judgment	[126]
Second cause of action: LFC report ultra vires	[127]
Third cause of action: breach of natural justice	[136]
The appeals before this Court	[150]
The Newtons' appeal against the third High Court judgment	[150]
Family Court appeal from first High Court judgment	[154]
Issues on appeal	[160]
The evidence before the High Court and this Court	[166]
Report from Children's Commissioner	[169]
Evidence of Professor Seymour	[174]
Joint memorandum on Family Court practice	[182]
“Evidence” on interpretation of COCA	[185]
Issue one: appropriateness of judicial review of s 133 orders	[192]
The issue	[192]
Submissions	[193]
Discussion	[196]
Issue two: ascertaining children's views in relation to obtaining s 133 report	[207]
The issue	[207]
Submissions for the Newtons	[208]
Submissions of other parties	[211]
Discussion	[224]
Issue three: pre-determination	[244]
The issue	[244]
Attorney-General's submissions	[245]
Submissions for the Newtons	[249]
Discussion	[253]
Issue four: reviewability of LFC report	[269]
The issue	[269]
Submissions on appeal	[270]
Discussion	[275]
Issue five: claim for removal of documents from the court file	[290]
The issue	[290]
Submissions on appeal	[292]
Discussion	[297]
Relief	[307]
Costs	[310]
Result	[312]

REASONS OF THE COURT

(Given by Goddard J)

Introduction

1 The two appeals before this Court have their genesis in an application for a parenting order under s 48 of the Care of Children Act 2004 (COCA) in respect of two children, whom we will refer to as Paul and Susan. The application was made by their maternal grandmother (whom we refer to as Ms B Lake). She seeks an order providing for her to have contact with Paul and Susan. The application is opposed by the children's father and stepmother (whom we refer to as Mr and Mrs Newton), with whom the children live. 1

2 Ms B Lake's application was made in June 2017, almost five years ago. No progress has been made towards a substantive determination of that application because the parties have been embroiled in litigation in the Family Court, in the High Court, and now in this Court, about whether a psychological report in respect of the children should be obtained under s 133 of COCA.

3 The appeals raise three main legal issues:

• (a) Is it necessary, before a Family Court judge makes an order under s 133 of COCA that a psychological report be prepared, that the judge ascertain and take into account the views of the child who would be the subject of that report?

• (b) Is it open to a party to proceedings under COCA to apply to the High Court for judicial review of a s 133 order, or is such an application an abuse of process?

• (c) In what circumstances, if any, can a party to proceedings under COCA seek judicial review of reports prepared by a person appointed as lawyer for the child (LFC) under that Act?

4 We summarise our conclusions on each of those issues as follows.

Ascertaining the views of a child before making a s 133 order

5 A Family Court judge may consider, in a particular case, that it is desirable to ascertain the views of a child in connection with a proposal that a s 133 report be obtained. But the judge is not required to do so in every case. Whether it is appropriate to ascertain the child's views, and the specific issues in respect of which their views

should be obtained, are matters for the judgement of the Family Court judge having regard to ss 4 and 6 of COCA and the particular circumstances of the case

Judicial review of s 133 orders

6 Judicial review is in principle available in respect of an interlocutory decision made by a Family Court judge under COCA, where the judge has failed to exercise a statutory power in accordance with that Act. But such a decision will be set aside in judicial review proceedings only where such relief is consistent with the scheme of the legislation, including the carefully structured appeal rights set out in s 143 of COCA. Judicial review is intended to ensure fidelity to the statutory scheme, not to undermine it.

7 Section 143(3A) of COCA expressly provides that there is no right of appeal from a s 133 order, even by leave. That restriction reflects two considerations: the nature of a s 133 order - it is a preliminary order made to obtain information that the judge considers will assist the court to make substantive decisions - and the need for prompt decision-making under COCA. It would undermine the statutory objective set out in s 4(2) of making decisions in a timeframe consistent with a child's sense of time if parties could delay obtaining a s 133 report, and delay informed decision-making on a substantive application, by pursuing challenges to s 133 decisions.

8 It would be inconsistent with the statutory scheme for relief to be granted in judicial review proceedings in respect of a decision under s 133 except in a very clearcut case of fundamental error. An order under s 133 will not be set aside in judicial review proceedings merely because the High Court judge considers that the criteria set out in s 133(6) were not met. The High Court judge would need to be persuaded that it was not open to the Family Court judge to form the view that the criteria were met.

9 Section 133(7) of COCA requires the court to have regard to the parties' wishes before deciding whether or not to make a s 133 order, if the court knows the parties' wishes or can speedily ascertain them. But the child who is the subject of an application for a parenting order is not a party to the proceedings. Section 133(7) does not require the court to ascertain the child's views. Nor are those views a mandatory relevant consideration before a Family Court judge can make an order for a s 133 report to be obtained. A...