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Tue 10th April 2007

You be the judge?

Filed under: General — MurrayBacon @ 8:09 am

Many people don’t seem to think that they have access to this appeal. I am not sure how this could be so, in a modern democracy?
Please think through what is happening here and judge whether this is acceptable?
What should be done about the familycaught?

K v C [appeal: relocation]

––––– (2001) 21 FRNZ 686 –––––

High Court, Auckland (AP147-SW00)

6 December; 19 December 2001

Priestley J

Custody and access – Appeal – Children in mother’s legal custody – Protection order in place against father – Father had been granted order preventing removal of children from New Zealand – Mother sought to revoke order and sought permission to relocate with children overseas – Allegations of gang affiliations and threats to kill untested – Applications granted on ex parte basis – Father sought to set aside Family Court’s decision – Whether Family Court had made a mistake in fact and law – Family Court’s duty to take critical approach to evidence in ex parte proceedings – Paramountcy principle – Guardianship Act 1968, ss 11, 13, 23(2), 28; Family Proceedings Rules 1981, r 8.

Due to length – this is continued as a comment…….

One Response to “You be the judge?”

  1. MurrayBacon says:

    judgement continues>>>>>
    The parties were never married but were involved in a relationship from 1995 until September 2000. There were two children of the relationship. The father’s guardianship rights were not in issue. It was likely that there were periods when the parties cohabited.

    In May 1998 the mother sought a protection order against the father, interim custody orders, and a warrant to enforce under the provisions of the Domestic Violence Act 1995. She alleged she had been assaulted and injured in front of the children and referred to a history of domestic violence including threats by the appellant to strangle her and threats with a knife. Temporary protection and interim custody orders were made on an ex parte basis, and the father’s contact with the children was restricted to “supervised access”. The father contested the mother’s claims and on 22 June 1998 a defended hearing took place in the Family Court. There was an express finding that the father had been violent towards the mother, as well as towards previous partners. On that occasion the presiding Judge was not impressed with the veracity of either party or any of the witnesses. By July 1998 the parties had reconciled to some extent.

    In April 2000 the father made an ex parte application for an order preventing the removal of the children from New Zealand. This order was made on 27 April 2000. A second application was made on notice and sought an order discharging the interim custody order relating to the younger child and seeking a custody order in the father’s favour.

    On 29 September 2000 an incident occurred that led the mother to take action to remove herself and her children from the father. The mother and her 15-year-old daughter had been looking at some clothing in a truck outside a property at which they were staying. The father, who was waiting for them outside the truck, became angry and ordered the mother to go into the garage. The mother understood this to mean that she was going to be beaten. As such, she ran away to a neighbour’s home and rang the police. The police thought it best not to remove the children at [(2001) 21 FRNZ 686, 687]that time, so, following the advice of her solicitor, the mother applied ex parte for a warrant to enforce the interim custody orders made in her favour in May 1998. A warrant was issued and executed, and the children were delivered to the mother at the West Auckland Refuge. In response to the mother’s actions, the father sought to activate his unresolved application for custody filed in April 2000.

    On 5 October 2000 the mother filed an ex parte application seeking an order discharging the earlier order preventing the removal of the children from New Zealand, as well as an order permitting her to relocate overseas. The mother alleged that the father was closely associated with gangs and that she had been told by the father’s ex-girlfriend that the father had purchased a gun and intended to use it against the mother and children. The mother’s affidavit was supported by a police officer who noted that the father had a number of previous convictions involving dishonesty and assault. The orders were granted by the Family Court on an ex parte basis along with a direction that no steps be taken to bring the proceeding or the orders made to the father’s attention. Following the orders, the mother moved to Australia with the children where she took on a new identity with the assistance of the police.

    The father sought to set aside the orders, and alleged that the Family Court’s determination was wrong in fact and law.

    Held, allowing the appeal:

    (1) Although s 28 Guardianship Act 1968 permits the Family Court to receive any evidence it thinks fit, regardless of whether that evidence is otherwise admissible, that statutory permission ought not to lead to the Family Court accepting evidence in an uncritical fashion. The mother’s affidavit was rank hearsay, and there had been no inquiry from the police officer, who was the other deponent, to verify the mother’s allegations. Furthermore the hearsay evidence came from a family whose members had previously left a Family Court Judge unimpressed with their veracity. The Judge erred in accepting the mother’s evidence in this uncritical way in an ex parte application. (p 700, para 67)
    (2) The Judge further erred by giving no apparent weight to the existing protection order and in his finding that proceeding on notice might entail serious injury and/or undue hardship to the mother and the children. There was no evidence before the learned Judge from which he could safely or conclusively find that the children were in imminent danger. (p 700, paras 68-69)
    (3) The Family Court Judge erred in his failure to appoint counsel to represent the children and in his failure to leave open a door whereby further evidence relating to the children’s interests would be received and assessed. The orders made by the learned Family Court Judge negated the obligation under s 23(1) Guardianship Act 1968 that a Court must regard a child’s welfare as the first and paramount consideration. In addition, the orders caused the children’s rights under arts 9 and 12 of the United Nations Convention on the Rights of the Child to be empty rights. The Family Court Judge further erred by failing to take any steps to ascertain the wishes of the children as is required by s 23(2). (p 700, paras 70-72)
    (4) By prohibiting disclosure of the orders made to the father, the Family Court Judge adopted a procedure which effectively denied the father a right to be heard and a right to ask for the ex parte orders to be rescinded. In combination the orders allowed one parent to bring about a radical change to the children’s lives and [(2001) 21 FRNZ 686, 688]environment without any input by or submission from the other parent. These too were errors of law. (p 701, para 75)
    (5) Any one of the above errors would suffice as a sound basis to allow the appeal. Both individually and in combination, the orders made by the Family Court, the process whereby those orders were made, and the reasons for making them were flawed. As such, the orders had to be set aside. (p 701, para 76)

    Obiter, New Zealand Courts have the power to make orders preventing removal of the children from New Zealand simpliciter. In most cases such orders can be made without the need to issue a warrant or make orders relating to travel documents. (p 704, para 89)

    Cases referred to

    C v DGSW 27/12/96, Robertson J, HC Auckland HC185/96C v K (1994) 12 FRNZ 368; [1995] NZFLR 139L v C 1/12/99, Robertson J, HC Auckland AP-SW00M v M 16/11/01, Fisher, Priestley JJ, HC Auckland AP26-SW01Martin v Ryan [1990] 2 NZLR 209; (1990) 6 FRNZ 187

    Appeal

    This was an appeal alleging that the Family Court’s decision to allow the mother to relocate to Australia and assume a new identity was wrong in fact and in law.

    S Otene for applicantS R Jefferson as amicus curiaeR de B Cox for children

    PRIESTLEY J: [reasons for judgment]

    Appeal and decision

    [1] In November 2000 the appellant filed a notice of motion by way of appeal from orders made in the Waitakere Family Court the previous month alleging that the Family Court’s determination was wrong in fact and in law.

    [2] At the conclusion of the hearing on 6 December 2001 I allowed the appeal and set aside the orders made in the Waitakere Family Court on 6 October 2000. This judgment sets out my reasons.

    Orders under appeal and process

    [3] The appellant and the respondent are father and mother respectively of two young children currently aged 5 and 4.

    [4] On 5 October 2000 the respondent filed an ex parte application in the Waitakere Family Court seeking the following orders:

    (a) An order discharging an earlier order made in the Papakura Family Court on 27 April 2000 pursuant to s 20 of the Guardianship Act 1968 preventing the removal of the two children from New Zealand.
    (b) An order pursuant to the same Act permitting the respondent to relocate out of New Zealand with the two children.
    (c) An order directing the transfer of the Papakura Family Court file involving the parties to the Waitakere Family Court.[(2001) 21 FRNZ 686, 689]

    [5] The last order was made by the learned Family Court Judge immediately. The next day, having had the opportunity to read the Papakura Family Court file, the Judge made the first two orders sought.

    [6] The result of these orders, made on an ex parte basis, was to clear the way for the respondent to take the parties’ two children out of New Zealand. This is what she hoped to achieve. Since the application for the orders was made ex parte, both the appellant and his solicitor were oblivious to what was occurring.

    [7] Additionally the learned Family Court Judge made the following direction:

    “[29] There is a further direction that no steps be taken to serve the respondent or his solicitor, or otherwise bring these proceedings or orders to his notice, until further order of the court.”

    [8] Such a direction had not, in the papers at least, been sought by the respondent’s solicitor. No reasons were given for this direction.

    [9] On 16 October 2000 the learned Family Court Judge saw the respondent’s then solicitor in chambers. It is not clear from the Waitakere Family Court file whether this was a scheduled chambers appearance or whether it was instigated by either the Family Court Judge or by counsel. The learned Family Court Judge noted the following points:Ms C [the respondent] now in Australia with children.Only the police know her name and whereabouts.[Counsel for the respondent] without ongoing instructions.She may contact [the respondent’s former solicitor] to see what steps if any [the appellant] may be taking.

    [10] The learned Family Court Judge then made a direction to appoint counsel to assist the Court (pursuant to s 30(1)(a) of the Guardianship Act 1968) for the following purposes:

    (a) To consider the background to the current orders.
    (b) To consider how best to give notice of the current orders and application and affidavits to the appellant or his solicitor.
    (c) To consider the wider safety issues and children’s interests.
    (d) To report to the Court and to the respondent’s solicitor within 8 days.

    [11] The Family Court appointed Ms Cox as counsel to assist. Ms Cox had previously (in 1998) been appointed by the Papakura Family Court to act as counsel for the parties’ two children. She was not, however, reappointed to that role by the Waitakere Family Court either when the respondent’s ex parte application was filed or subsequently.

    [12] So far as item (c) (supra) of Ms Cox’s brief was concerned the Family Court’s direction underlines the fact that the Court at that stage had little or no information before it about “wider safety issues” or, more importantly, the children’s interests. The learned Family Court Judge’s direction was made 10 days after he had made orders which had resulted in the children being taken to Australia. The combination of the ex parte orders made on 6 October and the Judge’s direction 10 days later point to the conclusion that the orders had been made with scant or any information about the children’s interests and also to the conclusion that Ms Cox’s report (whatever it might contain) would not alter a fait accompli.[(2001) 21 FRNZ 686, 690]

    [13] Ms Cox’s report was faxed to the Waitakere Family Court Registrar on 25 October 2000. It is not necessary for the purposes of this judgment to duplicate the contents of Ms Cox’s report. With regard to the first head of her brief Ms Cox traverses briefly the violent dimensions of the parties’ relationship and refers to a Papakura Family Court hearing in June 1998 (infra para 30). With regard to the second head Ms Cox recommends service of the orders on the appellant’s counsel. With regard to the third head Ms Cox observes that the effect of the orders made would preclude the appellant from maintaining any contact with the children in the foreseeable future. She points out there could be “no guarantee” that the respondent would seek any specialist assistance in Australia to address the effects of an abusive or violent relationship, nor was it possible to monitor whether the respondent would enter into another abusive relationship.

    [14] The appellant’s solicitors in the meantime had been endeavouring, with total lack of success, to ascertain what steps the Waitakere Family Court had taken. On 17 October 2000, the solicitors wrote to the Registrar of the Papakura Family Court (being of course unaware the file had been transferred) seeking a judicial conference to make directions on the appellant’s April 2000 application. Two days later the solicitors wrote to the Waitakere Family Court Registrar referring to this earlier request. The appellant’s solicitors by that stage were aware (probably as a result of being informed by Ms Cox) of the learned Family Court Judge’s direction that neither the appellant nor his counsel were to be served with the ex parte orders until further order of the Court. Directions were sought.

    [15] That letter was placed before the learned Family Court Judge who minuted on 24 October 2000 that the Registrar was to write a letter to the appellant’s solicitors advising them that the letter had been referred to a Judge (clearly it had already had) and the appellant’s solicitors would be informed as soon as any directions were made. That letter was copied by the Court to the respondent’s solicitors. This minute was made by the learned Family Court Judge the day before receipt of Ms Cox’s report, the absence of which presumably explains the Judge’s decision to procrastinate.

    [16] The day after receipt of Ms Cox’s report (26 October) a further direction was made. The papers were to be released to the appellant’s solicitor the next day by the Family Court Registrar in the presence of “Dave Ryan” which was the learned Judge’s minuted description of Senior Sergeant D W Ryan of the New Zealand Police. This police officer, as will be seen, (infra para 42) had filed an affidavit in support of the respondent’s ex parte applications. Pursuant to that minute the appellant’s solicitor received copies of the respondent’s ex parte application, the supporting affidavits, the Waitakere Family Court decision and sealed copies of the two resulting orders.

    [17] On that same date (27 October) the learned Family Court Judge made the following order, “No access to any documents on this file to anyone other than court staff without judicial authority”.

    [18] The reason for this direction, which was presumably made after the appellant’s solicitors had been given copies of documents and orders that day, is not apparent from the Waitakere Family Court file, nor indeed is the need for it. The wording of the direction arguably brings into play the provisions of r 8 of the Family Proceeding Rules 1981 which provide:[(2001) 21 FRNZ 686, 691]

    “8. Searches–

    (1) Subject to subclause (2) of this rule, the following persons may search the records of and the documents filed in the District Court in relation to any proceedings under either of the Acts, namely:

    “(a) A party to the proceedings, or his solicitor or an agent of his solicitor:
    “(b) Any other party who satisfies the Registrar that he has a proper interest in the proceedings.

    “(2) If the Registrar considers that it would contravene a direction given by a Judge to permit a person referred to in subclause (1)(a) or (b) of this rule to inspect any particular document, or that there is some other special reason why the person should not search any particular document, he may decline to permit that person to search that document.
    “(3) If a person referred to in subclause (1)(a) or (b) of this rule disputes the exercise by the Registrar of the power conferred on him by subclause (1) or subclause (2) of this rule, the Registrar shall, on that person’s request, submit the request to a Judge, whose decision shall be final.”

    [19] I note that Ms Cox in her report to the Court referred briefly to her assumption that “the blanket over these proceedings at the present time is being exercised pursuant to r 8”. That assumption presumably refers to the learned Family Court Judge’s direction prohibiting notification (supra para 7). Although r 8(1)(a) and (2) when read together suggest that there may be occasions when certain parts of a Family Court file should not be open to search by a party, his or her agent, or solicitor, it is highly doubtful whether the rule provides a legitimate basis, as was the case here, for a prohibition on notifying a party of a decision of the Family Court. The effect of the r 8 direction made on 27 October 2000, would be to deny access to the respondent, and more importantly to his solicitors, to search the Family Court file to ascertain, for instance, whether there was any information, documents or minutes other than those which had been served on 26 October. Access to a handwritten minute of the 16 October conference (supra para 9) would be prohibited without leave. The direction is puzzling. Neither of the three counsel who appeared before me were able to advance any reason for it.

    The issue

    [20] The issue before me is whether the learned Family Court Judge was correct in his ex parte decisions first to discharge an order which the appellant had earlier obtained in another Court preventing the removal of two children from New Zealand, and secondly to permit the respondent to relocate the two children outside New Zealand, with the additional restriction on informing the appellant and his solicitors that such orders had been made until after the children had left New Zealand for Australia.

    [21] This formulation of the issue cannot be challenged on any sensible basis. It accurately reflects what has occurred, and accords with the focus of submissions which I received from all three counsel Thus formulated the answer is, with respect, obvious. The Family Court determination was nonetheless made by an experienced Family Court Judge who was clearly alert to the relevant substantive law and the relevant issue. Because the Family Court decision was so starkly different from the obvious answer, further analysis is required.[(2001) 21 FRNZ 686, 692]

    Factual background

    [22] The orders made by the learned Family Court Judge were made in the exercise of his jurisdiction under the Guardianship Act 1968. Although various historical applications had been made under that statute and various interim orders made, at no stage had there ever been a determination of the parties’ respective claims nor had there been any assessment of what the interests of the children required.

    [23] The Papakura Family Court file which the learned Family Court Judge inspected before making his orders contained sparse information about the children. The appellant’s affidavit dated 27 April 2000, asserted that the younger child “has by and large spent most of the time in my care” whilst the elder child had spent most time in the respondent’s care. Each child, on the basis of that affidavit had a different primary caregiver. Although interim custody orders had been made in the Papakura Court as a result of relief sought in 1998 under the Domestic Violence Act the focus of previous proceedings involving the parties had not been on Guardianship Act issues.

    [24] In the submission of counsel for the children, who had been involved with the family in 1998, it was at relevant times very difficult to ascertain who the caregivers of the children were.

    [25] The parties were never married. At no stage was it ever contested that the appellant was a guardian of both children pursuant to s 6 of the Act. The parties’ relationship appears to have commenced in 1995 and lasted until late September 2000.

    [26] In May 1998 the respondent applied in the Papakura Family Court for a protection order, interim custody orders and a warrant to enforce under the provisions of the Domestic Violence Act 1995. She also sought an order preventing the removal of the children from New Zealand. That latter order, however, was not made.

    [27] The respondent in 1998 alleged she had been assaulted and injured in front of the children and that police assistance had been required. Her affidavits referred to a history of domestic violence including threats by the appellant to strangle her and threats with a knife. The temporary protection and interim custody orders were made on an ex parte basis as the provisions of the Domestic Violence Act envisage. The appellant’s contact with the children was restricted to “supervised access” which from a technical point of view remains the only basis on which contact between the appellant and the children can take place.

    [28] The appellant contested the respondent’s claims. He filed a notice of objection to attending the mandatory anger management programme, a notice of defence, and an affidavit which outlined a different domestic history and different care arrangements from those deposed to by the respondent.

    [29] Counsel for the children Ms Cox was appointed by the Papakura Family Court on 11 June 1998. Prior to that appointment the presiding Judge considered the papers thus far on the file and described them as indicating “a complex set of relationships which to greater or lesser degrees bear upon the welfare of these two very small children”.

    [30] On 22 June 1998, a defended hearing under the Domestic Violence Act took place in the Papakura Family Court. This hearing occupied a day and [(2001) 21 FRNZ 686, 693]included viva voce evidence and cross-examination. There was an express finding that the appellant had been violent to the respondent, to his former wife and to a former girlfriend. The appellant’s evidence did not impress the presiding Family Court Judge. She was additionally constrained to comment “I have to say that I have not heard one witness today who I have not considered to be lying at some time”.

    [31] One of the deponents in the 1998 Papakura hearing appears to be the same person whose hearsay statement the respondent placed before the Waitakere Family Court on 5 October 2000. A protection order for the benefit of the respondent and the two children was made which remains in force to this day. So too, as stated, do the interim custody orders made in the respondent’s favour under the Guardianship Act.

    [32] It appears that by July 1998 the parties had to some extent reconciled. At no stage, despite the allegations of violence raised by both parties, was there any determination of the type demanded by s 16B of the Act.

    [33] The appellant neglected to attend the anger management programme, a mandatory requirement under the Domestic Violence Act. A summons in relation to his non-attendance was issued in November 1998 and in due course a warrant was issued for his arrest (in June 1999). That warrant was apparently never executed although in recent times the appellant has voluntarily surrendered.

    [34] In April 2000 the appellant made further applications to the Family Court at Papakura. His first application was made ex parte and sought an order preventing the removal of the children from New Zealand. The order was made on 27 April 2000. The second application was on notice and sought an order discharging the interim custody order relating to the younger child and seeking in lieu a custody order in the appellant’s favour.

    [35] The history of the relationship between April 2000 and the end of September 2000 is somewhat obscure. It is reasonable to infer, however, from such affidavits which have been filed that there were periods during which the parties cohabited. There are suggestions too that the appellant continued to play a role in the life of at least one child.

    [36] On 29 September 2000 the respondent applied ex parte to the Papakura Family Court for a warrant to enforce the interim custody orders which were made in her favour in May 1998. A warrant issued and was executed that night. The two children were delivered to the respondent at a West Auckland Refuge.

    [37] The respondent’s application for a warrant can be seen in the context of her affidavit in support of her ex parte applications in the Waitakere Court. She deposed:

    “13. Last week the respondent and I and our two children travelled down to Hamilton to collect my 15 year old daughter for some access over the holidays. After we had collected my daughter we came back to [. . .] Manurewa, where we were to stay the night. This was on Friday, 29 September 2000. While we were at that address my 15 year old daughter and I went to check out some clothing, which was being sold from a clothing truck outside the property. When my daughter and I got out of the truck, the respondent was waiting for me and was really agro for no reason. He ordered me to go to the garage at the home in Manurewa and I knew I was going to get a hiding. There was no reason why I deserved a hiding but I believe the respondent thought I had spent too long in the clothing truck. Something clicked inside me at that time and I decided I could not stand another beating. I [(2001) 21 FRNZ 686, 694]said to the respondent ‘up you, I’m going to ring the Police’ and I then ran off to a neighbour’s home, leaving the children at the address in [. . . ]. The Police came and collected me and then went to the respondent’s ex partner’s home.
    “14. The Police assessed the situation and did not want to immediately remove the children. The Police therefore took me back to the Police Station and I contacted my then Solicitor, Selina Trigg, of Karen Lindberg’s office in Papakura. Ms Trigg applied ex parte to the Court for a Warrant to Enforce my Custody Order and a Warrant was granted. Annexed and marked with the letter ‘D’ is a copy of the Warrant to Enforce. The Police then took me back to the address at [. . .], Manurewa, to enforce the Warrant. Unfortunately the respondent had taken off with the kids at that time. I was then taken by the Police to a Refuge in West Auckland and the Police advised me that they would later return to the home in Manurewa and try and remove the children. My two younger children were eventually uplifted by the Police later that night and brought over to the Refuge at about 11.30 pm. By that stage my 15 year old daughter had been collected by her father and had been returned to Hamilton.”

    [38] The appellant’s reaction to these events was to consult his solicitor and seek to activate his unresolved application filed in April 2000. His solicitor inquired of the respondent’s then solicitors whether they were authorised to accept service of the April proceedings. On being told that they were, the proceedings were mailed on 5 October 2000. That was the same day that the respondent, having engaged another solicitor in West Auckland, applied for the ex parte orders which occupy centre stage in this appeal.

    Evidence before the Family Court Judge

    [39] The learned Family Court Judge had before him the entire Papakura Family Court file which he directed should be transferred to Waitakere. From that file it would have been evident that there was a pending application (April 2000) by the appellant; a final protection order made in 1998 for the respondent’s and children’s benefit; interim custody orders in the respondent’s favour; and the 1998 presiding Judge’s Domestic Violence Act decision containing, as it did, comments about the credibility of the parties and other deponents.

    [40] He also had before him the supporting affidavits filed in the Waitakere Family Court from the respondent and from Senior Sergeant Ryan. The contents of those affidavits, at first blush, might suggest that the respondent and the children were in imminent danger. During the course of argument before me consideration was given to the possibility of the learned Family Court Judge being destabilised or fixated by the contents of these affidavits. If he was, with the greatest of respect he ought not to have been. No such reaction appears in his decision except, perhaps, by inference. The respondent and children already had the benefit of a protection order. The applications before him were Guardianship Act applications. A careful and detached appraisal of the contents of the respondent’s supporting affidavits would have led to a conclusion that the picture of imminent risk which they painted was based on tenuous evidence which needed to be subjected to further scrutiny and appropriate inquiry. Regrettably this did not occur.

    [41] The relevant affidavit evidence needs but short recital. The respondent’s affidavit briefly but correctly recounted the litigation history of the parties and then turned to recent allegations of violence and threats in the year 2000. She then deposed:[(2001) 21 FRNZ 686, 695]

    “15. . . . [the appellant] in the past has been associated with the Storm Troopers Gang and is more recently associated with the Black Power Gang. Although he is not a patched member, he has close association with Black Power. I am aware that in the past, he has always managed to track me down and I believe he would have no difficulty in locating me at this Refuge. I am also aware that often Black Power will place a women in Refuge to check out who else is staying there and feed that information back to the Gang.

    .
    .
    .
    .
    .”

    “17. . . . I telephoned [the appellant’s] ex partner, Sharon, to see what she wanted. Sharon then informed me that [the appellant] had just purchased a gun and in addition, had purchased a Commodore car. I have no idea where he got the money to buy these items. Sharon informed me that [the appellant] had made it clear to her that he had bought the gun so that he could take me and the children ‘out’. He had informed Sharon that if he could not have us, then no one else would. I believe that Sharon was quite genuine in passing this information on to me . . .”
    “18. . . . I believe that [the appellant] is fully capable of using a gun against me and the children to get his own way. [The appellant] did inform me that prior to our relationship, he had been charged with an incident involving a firearm and a child . . . . I believe that [the appellant] would have no difficulty in obtaining a gun through his contacts with Black Power.

    .
    .
    .
    .
    .”

    “20. . . . Sergeant Ryan has informed me that the Police can assist me to relocate out of New Zealand with the children. This relocation will involve the children and I obtaining new passports, birth certificates and identities. . . . I believe the only way of ensuring my safety and the safety of the children is for us to get out of New Zealand as soon as possible so that we can get away from the [appellant] and his associates.”

    The affidavit then goes on to recite allegations of violence by the appellant against the two children. The affidavit repeats the respondent’s belief that “our only chance of a future” is to relocate to another country with the assistance of the police and to assume a new identity.

    [42] The supporting affidavit of Senior Sergeant Ryan annexes the appellant’s criminal history. From that it would have been apparent that this alleged gang member was 55 years of age (his age was also apparent from the Family Court information sheets) with a large number of convictions spanning a period of 39 years involving dishonesty and assault. The most recent included a number of assault convictions in the Whangarei District Court in December 1992 and in the Kaikohe District Court a conviction for wilful trespass (which attracted a suspended term of imprisonment) in June 1995. One of the 1992 convictions is described “assault child (firearm)”. There had been no convictions since June 1995, over 5 years before.

    [43] Senior Sergeant Ryan holds the position of Family Violence Youth Strategy and Community Co-ordinator in the Waitakere, North Shore and Rodney police districts. He first met the respondent at the refuge on 4 October 2000, the day before he swore the affidavit. The respondent gave him a history of the marriage. In para 2(iii) the deponent repeats what the respondent had been told by the appellant’s former partner Sharon (supra para 41). No attempt was made to interview Sharon or to ascertain whether the appellant had indeed purchased a firearm or made the threats complained of. The deponent refers to police incident reports relating to the respondent calling the police to the Manurewa address on 29 September 2000, and refers to an earlier report on 14 April 2000.[(2001) 21 FRNZ 686, 696]

    [44] The deponent then states:

    “5. After speaking with the [respondent and the Manager of the Refuge] and in making my further enquiries, I was of the view that [the respondent] and her children were at serious risk of harm if Mr K should become aware of their whereabouts.”
    “6. Having considered the matter carefully, I was of the view that the only way to ensure the ongoing safety of [the respondent] and her two children was to assist them to relocate out of New Zealand under new identities. In my role as Domestic Violence Co-ordinator for the New Zealand Police in the Waitakere District I have assisted other women and children who have been the victims of domestic violence, to relocate either within New Zealand or out of New Zealand to ensure their ongoing safety.”
    “7. . . . I made contact with our Interpol Division and was advised that a CAPPS Listing had been made in respect of [the respondent’s] two children preventing their removal from New Zealand.
    “8. I am aware from enquiries I have made with the Waitakere Court that [the parties] have in the past had previous applications dealt with by the Papakura Court. I would be concerned for [the respondent’s] safety if she was required to go out to the Papakura district to have these matters dealt with as I understand she is known in that area and could easily be identified by Mr K or his associates. As part of our relocation programme, we arrange for our client’s [sic] to have an interview with WINZ to assist with relocation costs. Because of my concerns for [the respondent’s] safety and the safety of her children I will be ensuring that her WINZ interview occurs in the Waitakere district.”

    [45] Referring to the respondent’s concerns about her safety in the refuge where she had been Senior Sergeant Ryan says:

    “9. . . . I understand that [the appellant] has close associations with the Black Power Gang. It is for that reason that I have arranged for [the respondent] and her children to move out of the Refuge.”

    [46] Any detached assessment of Senior Sergeant Ryan’s evidence would reveal that it added little, if anything, to the respondent’s affidavit. The police officer had met the respondent the previous day. He provided the appellant’s criminal history which displayed no criminal convictions within the previous 5 years. There was an uncritical acceptance (which the police could well have checked) of the respondent’s assertion that the appellant had recent associations with a gang. There was no attempt whatever to interview Sharon, whom the Papakura Family Court file reveals as being one of a class of unreliable deponents, to verify the appellant’s alleged threats or his alleged acquisition of a firearm. There was no amplification of the deponent’s “view”, which the Family Court Judge by his orders was to endorse, that the “only way” to ensure the safety of the respondent and the children was by the extraordinary means of relocating them outside New Zealand with new identities.

    [47] On the basis of that evidence untested, hearsay, and unverified, the Family Court made orders under the Guardianship Act which not only permitted the two children to leave New Zealand without any assessment as to whether that relocation would be in the children’s interests but furthermore failed, until after the children’s departure, to notify the appellant of the orders which had been made.[(2001) 21 FRNZ 686, 697]

    The Family Court decision

    [48] The learned Family Court Judge was alert to the consequences of the orders he was making. He was alert too to the relevant law. Amicus rightly described the situation as extraordinary. In Mr Jefferson’s submission the learned Family Court Judge should not have contemplated making the orders which he did without allowing the appellant the opportunity to be heard unless he was convinced that there was absolutely no other way to protect the children. With that submission I agree. The learned Family Court Judge’s reasons must nonetheless be examined.

    [49] The Judge briefly but correctly recites the background facts. He refers to the parties’ relationship as being an “on and off” one. He refers to the appellant’s April 2000 application for custody of the younger child based on the fact that the child had been primarily in the appellant’s care. He refers to the respondent’s 5 October 2000 affidavit, to her concerns, and to the hearsay evidence relating to the purchase of a gun from the appellant’s former partner. He refers to Senior Sergeant Ryan’s evidence. He then asks himself the following correct question:

    “[17] The above history, and the sworn evidence now before the court, satisfies me that there are good grounds for the applicant’s concern for her own safety and that of her children. The question remains however whether the orders sought, far reaching as they would be, should be granted without notice to the respondent.”

    [50] The learned Judge then briefly but correctly reviews the law relating to ex parte relief and to the requisite grounds contained in r 16(2)(a) of the Family Proceedings Rules 1981 which permits the Family Court to make an ex parte order. He reviews the relevant law including the High Court decision of Martin v Ryan [1990] 2 NZLR 209; (1990) 6 FRNZ 187, C v DGSW 27/12/96, Robertson J, HC Auckland, HC185/96, L v C 1/12/99, Robertson J, HC Auckland AP SW99, C v K (1994) 12 FRNZ 368; [1995] NZFLR 139.

    [51] Prefacing that review of the law the learned Judge commented:

    “[19] It is rare for the court to act on the ex parte application of one party when orders are sought which are likely to have final effect and prevent the other party from maintaining any contact with his children in the foreseeable future. Persuasive grounds would obviously need to be established which indicate a serious risk to the life or safety of either the applicant or the children of the parties before the court would make such orders without hearing from the other party.”

    [52] Moving to the topic of counsel for the children, which perhaps should have alerted the learned Family Court Judge, had he overlooked it, that he was dealing with a Guardianship Act application the learned Judge said:

    “[25] I have considered whether or not to re-appoint the lawyer who represented the children in 1998. That would not be to address the respondent’s position. It would enable a check to be made on the applicant’s position, but I consider the applicant’s evidence corroborated by an experienced police officer to be sufficient in that regard. It would allow the children’s needs and safety to be considered by an independent person. However given the ages of the children and the highly conflictual family environment which they have been subjected to all their lives, as well as the fact that a lawyer is not qualified to interview young children or assess the impact on them of the severing of contact in the immediate [(2001) 21 FRNZ 686, 698]future with their father, I do not see that the court would be assisted in respect of those matters by re-appointment of counsel for the children.”

    [53] This passage of the learned Judge’s decision is clearly wrong. The role of counsel for the child is not to carry out “a check” on a party’s “position” but is instead to ensure that all relevant evidence relating to children’s interests is placed before the Court; to ensure that the parties’ partisan evidence is tested by relevant cross-examination; and to represent independently the interests of the children by submission. Nor is the role of counsel for the child limited to interviewing children. Issues relating to the wishes of children, particularly young children, can be illuminated by a s 29A report, sometimes by s 29 reports. Nor, with respect, is it the function of counsel for the child to “assess the impact . . . of the severing of contact in the immediate future with their father . . .”. That is a function of a Family Court Judge informed by the evidence of both parties, by submissions, and frequently by reports, with s 23 and the paramountcy principle dominant.

    [54] At that stage in his decision the learned Family Court Judge’s analysis ceased. Without giving reasons and certainly without testing the respondent’s wishes and allegations, relocation of the children is assumed to be a desirable outcome. The achieved goal, relocation, from that point on drives the process.

    “[26] Clearly considerable urgency attaches to this matter. The evidence indicates that the respondent is likely to be pursuing his attempts to locate the applicant and the children as the court considered these applications. It will take a little while before the necessary paperwork and administrative steps can be taken to enable the applicant to relocate overseas with the children. The benefits of delaying these proceedings while further inquiries are undertaken, or even allowing for the respondent to be served and his views taken into account in the usual way, have to be weighed against the clear risks to the safety of the applicant and the children by further delay.”

    [55] That the learned Family Court Judge was aware of the consequences of the orders he intended to make is apparent:

    “[27] I do not overlook the fact that granting these applications will, at least for the foreseeable future, sever the relationship between the children and their father. The quality of that relationship is untested and unclear. He has only ever had supervised access by court order, but clearly has had their actual care from time to time by informal arrangement with the applicant. What is most important is that the applicant is clearly their primary parent, and any threat to her life or safety necessarily threatens the children’s interests.”

    [56] It is obvious that a threat to the life or safety of any parent of any child is potentially detrimental to that child’s interests. What the Guardianship Act contemplates, however, and what the Family Court is uniquely equipped to execute, is a measured in-depth assessment of a child’s interests and how a child’s parents can best cater for those interests. No such assessment can be carried out in the context of an ex parte application. The above passage makes factual findings about the respective importance of the children’s two parents in the children’s lives and about care arrangements when as I have already observed (supra para 23) there was minimal evidence on those aspects.

    [57] Nor with respect is it apparent what the learned Family Court Judge meant when he described the respondent as being “clearly their primary parent”. If that expression (which counsel who appeared before me found inexplicable) means that [(2001) 21 FRNZ 686, 699]the respondent was the children’s primary caregiver clearly such a finding was contestable so far as the younger child was concerned. If the expression is synonymous with “primary attachment figure” there is no evidence at all to justify a finding that these children had but one primary attachment figure. Indeed given what scant evidence there is about the family history it would be surprising if the children did not have a number of primary attachment figures.

    [58] The learned Family Court Judge’s conclusion and ratio decidendi was as follows:

    “[28] Taking these matters into account, and focusing specifically on the criteria for proceeding ex parte set out in Family Proceedings Rule 16(2)(a), I am satisfied that the delay that would be caused by proceeding on notice would or might entail serious injury to the applicant and the two children, or undue hardship to the applicant, and certainly would entail risk to the personal safety of the applicant and of the two children. Those risks are in my view such as to justify this rather extraordinary course of action.”

    Decision

    [59] This appeal was first set down before me on 18 September 2001. Counsel for the respondent who appeared at the first directions conference had properly sought leave to withdraw being without instructions.

    [60] No consideration had been given at an earlier directions conference to reappointment of counsel for the children or appointment of amicus. Having had the benefit on 18 September of the outline submissions of the appellant’s counsel and having read the Family Court files I reached the view that such appointments should be made.

    [61] The determination of this appeal would have been faster had those appointments been made at an early stage. As a full Bench of this Court said in M v M 16/11/01, Fisher, Priestley JJ, HC Auckland AP26-SW01:

    “[29] The High Court will, however, always be alert to the importance of such appeals to the future of the children whose interests must be the Court’s paramount consideration. Some months will inevitably intervene between a Family Court determination and the hearing of a High Court appeal. Depending on the age of the children that intervening time may constitute a significant proportion of a child’s life.”
    “[30] The intervening period may also produce highly relevant facts. Significant events in the lives of the children and their parents; the current nature and effect of the relationship between the parents; how contact regimes are working; the children’s current wishes; – all these matters are relevant to an appellate court’s decision and must be brought before the High Court in an appropriate way.”
    “[31] In many cases the High Court will be assisted by short updating affidavits from the parties. Such affidavits should not be used as an opportunity to regurgitate factual issues aired in the Family Court. They should instead focus on the current arrangements for the children, whether or not such arrangements are working, and legitimate parental concerns over the children’s welfare. Where the Family Court has been assisted by a s 29A report, consideration needs to be given to reappointing the report writer to prepare an updated report to assist on the appeal.”
    “[32] Particularly in cases where parental perceptions and attitudes have relevance the appellate court, as was the case in this appeal, will be greatly assisted by observing the parties and may permit cross-examination in tightly controlled areas.[(2001) 21 FRNZ 686, 700]
    “[33] On all these issues the High Court will be greatly assisted by submissions or memoranda from counsel at the initial directions conference.”

    [62] Regrettably important issues thrown up by this appeal and the difficulties which were presented by there being only one counsel participating were not detected at an earlier stage. Reappointment of counsel for the children and an earlier appointment of amicus curiae would inevitably have led to the speedier disposition of this appeal.

    [63] I have been greatly assisted by the submissions of Mr Jefferson in his capacity as amicus and Ms Cox as counsel for the children.

    [64] All three counsel were of the view that the learned Family Court Judge had erred. They all submitted that the surrounding circumstances and the evidence before him in no way justified either the orders which were made on an ex parte basis or the direction prohibiting service of the orders on the appellant and his solicitor under further order of the Family Court. With those submissions I agree.

    [65] The formulation of the issue which I have earlier made (supra para 20) in essence requires an assessment as to whether the facts before the Family Court disclose such a state of affairs that the extraordinary intervention sought was justified.

    [66] In assessing, as he was obliged to do, the degree of risk to the children the learned Family Court Judge needed to weigh the facts that the respondent and the children were in a safe house; that the respondent and children had the benefit of a protection order; and that the respondent’s assertions about the appellant intending to “take out” the family with a recently purchased firearm were both hearsay and unverified.

    [67] Although s 28 of the Guardianship Act (replicated in other Family Law statutes) permits the Family Court to receive any evidence it thinks fit, regardless of whether that evidence is otherwise admissible, that statutory permission ought not to lead to the Family Court accepting evidence in an uncritical fashion. The respondent’s affidavit was rank hearsay. There had been no inquiry from the other deponent, Senior Sergeant Ryan, to verify the respondent’s allegations. Furthermore this hearsay evidence came from a family whose members had not, in 1998, impressed a Family Court Judge with their veracity.

    [68] In accepting the respondent’s evidence which supported her ex parte application in this uncritical way I am satisfied that the learned Family Court Judge has erred.

    [69] He has further erred in my judgment by giving no apparent weight to the existing protection order and in his finding that proceeding on notice might entail serious injury and/or undue hardship to the respondent and the children. There was no evidence before the learned Judge from which he could safely or conclusively find that the children who were in a safe house with their mother and who were beneficiaries of a protection order were in imminent danger. No Court can permit itself to be deflected from its clear constitutional and judicial role because of fears that the right or obligation of a party to appear before it might trigger violence or entail risk.

    [70] The learned Family Court Judge has further erred in his failure to appoint counsel to represent the children and in his further failure to leave open a door [(2001) 21 FRNZ 686, 701]whereby further evidence relating to the children’s interests would be received and assessed.

    [71] Although the Guardianship Act 1968 is properly regarded as a code (s 33) its provisions are to a very large extent consistent with the provisions of the United Nations Convention on the Rights of the Child which New Zealand ratified in March 1993. New Zealand’s international law obligations mirror statutory imperatives of New Zealand’s domestic law. Article 9 of the Convention provides:

    “Article 9

    “1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.

    .
    .
    .
    .
    .”

    “3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.”

    [72] Article 12 of the Convention provides:

    “Article 12

    “1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”
    “2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative of an appropriate body, in a manner consistent with the procedural rules of national law.”

    [73] These Convention obligations are totally consistent with New Zealand’s family law jurisprudence and in particular the obligation under s 23(1) that a Court must regard a child’s welfare as the first and paramount consideration. The orders made by the learned Family Court Judge have negated that obligation and have additionally caused the children’s rights under arts 9 and 12 of the Convention to be empty rights.

    [74] The Family Court Judge has further erred by failing to take any steps to ascertain the wishes of the children as is required by s 23(2). The Judge’s comments on that issue (supra para 52) are erroneous.

    [75] Finally, the learned Family Court Judge, by prohibiting disclosure of the orders he had made to the appellant, has adopted a procedure which has effectively denied the appellant a right to be heard and denied to him a right to ask for the ex parte orders to be rescinded. In combination the orders have allowed one parent to bring about a radical change to the children’s lives and environment without any input by or submission from the other parent. These too are errors of law.

    [76] Any one of these errors would suffice as a sound basis to allow the appeal. Both individually and in combination I am satisfied that the orders made by the Family Court, the process whereby those orders were made, and the reasons for [(2001) 21 FRNZ 686, 702]making them were flawed. The orders cannot be allowed to stand. They were erroneous. These were the reasons for my announced decision on 6 December 2001, to allow the appeal and set aside the Family Court’s orders.

    Post-appeal position

    [77] In the course of the hearing I invited submissions on what steps if any could be taken in New Zealand to return the children from Australia.

    [78] There is ample evidence that the appellant is a violent man. The children’s interests could well justify the conclusion that there be no contact between them and the appellant, or limited and/or supervised contact only. It could even be that the children’s interests permit a decision whereby the respondent relocates them in another country. These decisions, however, can only be reached after a careful consideration of all the relevant evidence and submissions from the parties’ counsel and counsel for the children.

    [79] If I had been persuaded that placing the children under the guardianship of the High Court (as wards of Court) might in some way assist such a determination then I would have been prepared to make such order. I do not consider that wardship orders will assist. The return of the children to New Zealand to enable proper determination to take place in the New Zealand Family Court is unlikely to be achieved unless either the respondent voluntarily returns the children to this country, or alternatively the Family Court of Australia so orders.

    [80] The appellant’s success may well be an empty one. It is by no means certain that he will be able to penetrate the barriers which the assumption of a new identity by the respondent and the children in an unknown location have erected. It is far from clear whether the provisions of the Hague Convention on the Civil Aspects of International Child Abduction apply, nor can it be predicted what approach would be adopted by the Family Court of Australia if an application were made. No further comment by this Court is necessary on those aspects.

    Preventing removal

    [81] Mr Jefferson during the course of his submissions referred to possible difficulties arising out of the wording of s 20 of the Guardianship Act 1968. In his submission, although orders preventing the removal of children from New Zealand are frequently made, it is far from clear whether an order of that express type is spelled out in s 20.

    [82] The provision provides:

    “20. Preventing removal of children from New Zealand–

    (1) Any High Court Judge or District Court Judge or, if no High Court Judge or District Court Judge is available, any Registrar of the High Court or of a District Court (not being a constable) who has reason to believe that any person is about to take a child out of New Zealand with intent to defeat the claim of any person who has applied for or is about to apply for custody of or access to the child, or to prevent any order of any Court (including an order registered under section 22A of this Act) as to custody of or access to the child from being complied with,-

    “(a) May issue a warrant directing any constable or Social Worker to take the child (using such reasonable force as may be necessary) and place it in the care of some suitable person pending the order or further order of the Court having jurisdiction in the case; and[(2001) 21 FRNZ 686, 703]
    “(b) May, in addition, order that any tickets or travel documents (including the passport) of the child, or of the person believed to be about to take the child out of New Zealand, or of both, be surrendered to the Court for such period and upon such conditions as the Court thinks fit.]

    “(1A) Section 19B of this Act shall apply, with all necessary modifications, in relation to every warrant issued under subsection (1)(a) of this section as if every such warrant were a warrant issued under section 19(1) of this Act.]
    “(2) Any person against whom an order under subsection (1)(b) of this section is in force may apply to the Court for the discharge of the order, and the Court, in its discretion, may discharge the order accordingly.
    “(3) Every person commits an offence and is liable on summary conviction to fine not exceeding $500 or to imprisonment for a term not exceeding 3 months or to both who, without the leave of the Court, takes or attempts to take any child out of New Zealand-

    “(a) Knowing-

    “(i) That proceedings are pending or are about to be commenced under this Act in respect of the child; or
    “(ii) That an order of any Court (including an order registered under section 22A of this Act) conferring custody of or access to the child on any other person is in force; or

    “(b) With intent to prevent any order of any Court (including an order registered under section 22A of this Act) as to custody of or access to the child from being complied with.

    “(4) No proceedings for contempt of Court shall be taken against any person in respect of any act to which this section applies.”

    [83] A literal reading of s 20 might suggest that although New Zealand Courts have an express power to issue warrants to uplift the children about to be removed from New Zealand and to order the surrender of tickets and passports, there is no express power to make an order preventing removal simpliciter.

    [84] To the extent that the absence of an express power might permit an argument (in my judgment untenable) that making an order preventing removal without more is ultra vires the section, it is to be hoped that the current review of the Guardianship Act 1968 and related legislation will eventually lead to legislation which spells out an express power.

    [85] The ability of New Zealand Courts to ensure that children resident in this country and who are subject to the jurisdiction of the Guardianship Act are not removed from the jurisdiction is a powerful procedural order. In an age of increased social mobility and international travel orders preventing the removal of children from the country are an important adjunct of family law.

    [86] The s 20 power is additionally used to secure the presence in New Zealand of children who have been wrongfully abducted to this country or who are being retained here whilst the provisions of the Hague Convention on the Civil Aspects of International Child Abduction are invoked. (Section 25 Guardianship Amendment Act 1991.)

    [87] Orders preventing removal made by the Family Court are effectively enforced by the practice of the Interpol section of the New Zealand Police arranging a CAPPS listing. There is close liaison between the New Zealand Police, Family Court Registrars, and the Family Court Bar which ensures that s 20 orders are loaded into the CAPPS system within hours of being made. This has the [(2001) 21 FRNZ 686, 704]salutary effect that any attempt to leave New Zealand through an airport with a child to whom an order extends is frustrated.

    [88] The marginal note of s 20 is “preventing removal of children from New Zealand”. Marginal notes are recognised as a permissible and powerful aid to statutory interpretation (s 5(3), Interpretation Act 1999). In the exercise of ascertaining the meaning and purpose of s 20 there is no doubt that its overriding purpose is to ensure that children are not removed from New Zealand to defeat a Guardianship Act claim. Section 20(3) creates an offence to remove a child from New Zealand, without leave regardless of whether a s 20 order has been made.

    [89] Given the purpose of s 20 and the factors which I have mentioned, in my judgment New Zealand Courts have the power to make orders preventing removal of the children from New Zealand simpliciter. In most cases such orders can be made without the need to issue a warrant or make orders relating to travel documents. As a matter of interpretation it would be artificial to suggest that a Court can issue a warrant to uplift a child to prevent that child’s removal from New Zealand but has no power to prevent that child’s removal from New Zealand by a less dramatic means.

    [90] I note too that a prohibition on the removal of children from New Zealand can properly be attached as a condition of any custody orders pursuant to s 11(2). Doubtless if a litigant were obstructive enough to challenge the Family Court’s power to make an order preventing removal the matter would be placed beyond doubt by the Court making an interim custody order in favour of the appropriate parent with an attached condition preventing removal.

    [91] These comments of mine of course have obiter status. The issue has not been fully argued before me and hopefully the point raised by Mr Jefferson will never be raised. An attack on the vires of orders preventing removal would have serious consequences for New Zealand children. Absent legislative chance and the policy of s 20 is abundantly clear.

    Appeal allowed; Family Court orders set aside

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