E P V FAMILY COURT AND ORS HC AK CIV 2007-404-007917

E P V FAMILY COURT AND ORS HC AK CIV 2007-404-007917

EP was a mentally disordered person within r89(2) and therefore could only take part through a representative; no litigation guardian had been appointed before the 30 November hearing, and treating her solicitor as effective representative breached r89 and r88 and denied EP natural justice and s27 NZBORA rights; absent urgent, demonstrable necessity to proceed without representation, the interim parenting order made on 4 December 2007 was unlawful and must be set aside and the matter referred back to the Family Court for reconsideration.

Citation
openlaw-d01c4133_c480_4220_9d32_610cb08ac4be.pdf
Parties
Applicant: E P; First Respondent: FAMILY COURT; Second Respondents: H P AND R P; Third Respondent: P E G
Court
High Court
Jurisdiction
New Zealand
Judgment Date
10 July 2008
Procedural Posture
Application for Judicial Review / High Court Judgment on Application for Review
Outcome
Application for review granted in part: first Family Court decision (4 December 2007) declared unlawful and set aside; matter referred back to the Family Court for reconsideration; no declaration or set aside ordered in respect of the second decision
Legal Topics
Interim Parenting Order, Litigation Guardian, Natural Justice, Right to Be Heard, Stay, Forum/venue, Judicial Review, Service and Representation
Family Law Guardianship Child Welfare Mental Health Law Administrative Law Human Rights Interim Parenting Order Litigation Guardian +6 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 6 Authorities cited 12 Party arguments 2
Sign in to unlock

Parties

E P

Applicant

FAMILY COURT

First Respondent

H P AND R P

Second Respondents

P E G

Third Respondent

Procedural Posture

Application for Judicial Review / High Court Judgment on Application for Review

Legal Issues

  1. 1 Whether Judge Burns erred in proceeding without appointing a litigation guardian for a mentally disordered party under Family Court Rules r89
  2. 2 Whether EP was denied natural justice and the right to be heard contrary to s27 New Zealand Bill of Rights Act 1990
  3. 3 Whether the Care of Children Act 2004 welfare imperative justified proceeding without representation

Ratio Decidendi

EP was a mentally disordered person within r89(2) and therefore could only take part through a representative; no litigation guardian had been appointed before the 30 November hearing, and treating her solicitor as effective representative breached r89 and r88 and denied EP natural justice and s27 NZBORA rights; absent urgent, demonstrable necessity to proceed without representation, the interim parenting order made on 4 December 2007 was unlawful and must be set aside and the matter referred back to the Family Court for reconsideration.

Court Disposition

Application for review granted in part: first Family Court decision (4 December 2007) declared unlawful and set aside; matter referred back to the Family Court for reconsideration; no declaration or set aside ordered in respect of the second decision

Orders

  • Declare the Family Court judgment of 4 December 2007 unlawful
  • Set aside the Family Court interim parenting order made 4 December 2007