FAMILY COURT v AA [2021] NZCA 189

FAMILY COURT v AA [2021] NZCA 189 [14 May 2021]NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANYREPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND11D OF THE FAMILY COURT ACT 1980.NOTE: EXTANT ORDER PROHIBITING PUBLICATION OF NAMES ORIDENTIFYING PARTICULARS OF THE PARTIES: [2020] NZHC 3165.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA50/2021[2021] NZCA 189BETWEEN FAMILY COURTApplicantAND AAFirst RespondentAND BASecond RespondentAND CDThird RespondentCourt: French and Goddard JJCounsel: D L Harris for ApplicantD A T Chambers QC for First RespondentK N Crooks for Third RespondentJudgment:(On the papers)14 May 2021 at 4.00 pmJUDGMENT OF THE COURTA An extension of time is granted for the Family Court to appeal against thedecision of the High Court in [2018] NZHC 1638.B We direct that this appeal be heard together with CA19/2021.C Leave is granted to the Attorney-General to intervene in this appeal andin CA19/2021 on the terms set out at [22].D Leave is granted to the New Zealand Law Society to intervene in thisappeal on the terms set out at [26].E We make the following timetable directions:(a) The notice of appeal by the Family Court must be filed and servedby Friday, 11 June 2021.(b) A joint case on appeal for this appeal and for CA19/2021 must befiled by Friday, 2 July 2021.(c) The parties must file memoranda in relation to whether a lawyerfor the children should be appointed in this Court, and the termsof any appointment, by Friday, 2 July 2021.(d) A telephone conference will be convened by the Registrar in theweek beginning 5 July 2021.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)Application for extension of time to appeal[1] The Family Court seeks an extension of time to appeal against the decision ofthe High Court in AA v Family Court, which was delivered on 4 July 2018(first High Court judgment).1 The extension of time is sought under r 29A of theCourt of Appeal (Civil) Rules 2005 (Rules).[2] The approach to applications for extension of time under r 29A is wellestablished. As the Supreme Court said in Almond v Read, the ultimate question whenconsidering the exercise of the discretion under r 29A is what the interests of justicerequire.2 The factors which are likely to require consideration under r 29A include:(a) the length of the delay;(b) the reasons for the delay;1 AA v Family Court at Auckland [2018] NZHC 1638 [First High Court judgment].2 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38].(c) the conduct of the parties, in particular the applicant;(d) any prejudice or hardship to the respondent or to others witha legitimate interest in the outcome; and(e) the significance of the issues raised by the proposed appeal, both to theparties and more generally.The background to the application[3] The first High Court judgment arose out of proceedings in the Family Courtconcerning two children. In June 2017 Mrs D, the maternal grandmother of thetwo children,3 applied to the Family Court for a parenting order seeking contact withthe children. That application was opposed by Mr A, the father of the children, andtheir stepmother Mrs A.4 At a directions conference on 27 November 2017Judge de Jong made an order under s 133 of the Care of Children Act 2004 (COCA)that a psychologist's report be obtained in respect of the two children. Mr and Mrs Asought judicial review of that order on the grounds that the Judge had predeterminedthe decision, and had failed to take into account mandatory relevant considerations setout in s 133(6) and (7) of COCA. The Family Court was named as a respondent but,in accordance with normal practice, it did not take an active role in the proceedings,and abided the decision of the High Court. In the absence of any party playing anactive role as a contradictor, Mr Hodge was appointed as counsel to assist the Court.[4] Courtney J granted the application for judicial review.5 She found thata fair-minded lay observer would have concluded that the decision to require a s 133report was predetermined.6 She also found that mandatory considerations unders 133(6) and (7) had not been considered.7 In particular, Courtney J held that the viewsof the children should have been taken into account before making a decision that3 Mrs D is the third respondent in this application.4 Mr and Mrs A are, respectively, the first and second respondents in this application.5 First High Court judgment, above n 1.6 At [30].7 At [31].a s 133 report was required pursuant to s 133(7), which requires the court to haveregard to the parties' wishes.8[5] There was no appeal from the first High Court judgment at that time.The matter was remitted to the Family Court for further consideration.9 On 9 October2018, Judge de Jong issued a minute disqualifying himself from dealing with thecontinuing Family Court proceeding, and making a number of observations in relationto the proceeding and the High Court decision. On 18 December 2018 the matter camebefore Judge Burns, who delivered a judgment in which he found that the children'sviews did not need to be ascertained before a s 133 report could be commissioned.10The Judge went on to consider whether a s 133 report should be commissioned, andconcluded that it should be.[6] Mr and Mrs A then applied for judicial review in relation to the s 133 ordermade by Judge Burns (second judicial review proceeding). They claimed thatJudge Burns:(a) failed to take into account the mandatory relevant considerations ins 133(6) and (7) of COCA, and failed to give effect to the directionsgiven by Courtney J in the first High Court judgment;(b) relied on an irrelevant consideration: the report prepared by the lawyerfor the child, which Mr and Mrs A claimed was ultra vires; and(c) breached the principles of natural justice and s 4 of COCA, by failingto deal first with a recall application they had filed in relation to theminute issued by Judge de Jong on 9 October 2018, which theyconsidered was "highly prejudicial" and should be removed from theFamily Court file.[7] The second judicial review proceeding was heard by Duffy J. She deliveredan interim judgment in February 2020 dealing with the first of the three challenges to8 At [33].9 At [34].10 KQ v DN [2018] NZFC 9614.the decision of Judge Burns summarised above (second High Court judgment).11Duffy J allowed the application for judicial review, set aside the s 133 order, andremitted the matter back to the Family Court for reconsideration of whether a s 133report should be ordered "in accordance with the reasoning of this judgment and thefactual and legal findings in the judgment of Courtney J".12 One of the grounds onwhich the application succeeded was that the Family Court was bound by the firstHigh Court judgment, and should not have proceeded on a basis inconsistent with it.13Duffy J declined to revisit the question of whether it was appropriate for the children'sviews to be obtained before a s 133 report is ordered, as she considered this had beendetermined by the first High Court judgment, and that finding could only bechallenged on appeal.14[8] Duffy J then went on to address the second and third challenges summarisedabove in a further judgment delivered on 1 December 2020 (third High Courtjudgment).15 She declined to grant relief in relation to the report of the lawyer for thechild. In particular, she doubted that submissions made by a lawyer for the child onquestions of law are amenable to judicial review on the basis that they are wrong inlaw, and did not accept that errors of law in the report meant that it was an irrelevantconsideration which the Judge should not have taken into account.16 Duffy J alsodeclined to grant relief in relation to the (reframed, to take account of subsequentdevelopments in the Family Court)17 third cause of action. In particular, she declinedto order that certain documents, including a reissued version of Judge de Jong's minuteof 9 October 2018, be removed from the Family Court file.18[9] Mr and Mrs A have appealed to this Court from the third High Court judgment:that is the appeal in CA19/2021. After that appeal was filed, the Family Court filedthe application in CA50/2021 that is now before this Court, seeking an extension oftime to appeal against the first High Court judgment.11 DN v Family Court at Auckland [2020] NZHC 210, [2020] NZFLR 15.12 At [41].13 At [26].14 At [31].15 DN v Family Court at Auckland [2020] NZHC 3165.16 At [13]–[14].17 At [16] and [19].18 At [57]–[58].The grounds on which the Family Court seeks an extension of time[10] The Family Court says that the first High Court judgment and thethird High Court judgment are closely connected. It is inevitable that the correctnessof the first High Court judgment will be raised as an issue in CA19/2021. It isimportant that this Court is able to consider and determine the correctness of the firstHigh Court judgment when it hears the appeal against the third High Court judgment.The two appeals would benefit from being heard together.[11] The Family Court submits that the proposed appeal raises issues of publicimportance. It proposes to argue on appeal that the findings in the first High Courtjudgment are inconsistent with ss 6 and 133 of COCA, and are inconsistent withestablished practice in the Family Court in relation to s 133 reports. In particular, thecorrectness of the finding made by Courtney J that the views of a child should beascertained before directing a psychologist's report under s 133 is a matter of widerpublic importance which should be reviewed by this Court.[12] The Family Court explains the lengthy delay in bringing the appeal as follows:(a) As noted above, the Family Court abided the decision of the High Courton the judicial review proceedings in accordance with normal practice.(b) The time for appealing from the first High Court judgment as of rightexpired on 1 August 2018. The impact of that judgment onFamily Court practice was not fully appreciated at that time.(c) The respondents to the second judicial review proceeding, and theNew Zealand Law Society (NZLS) as intervenor, had proceeded on thebasis that the correctness of the first High Court judgment would beable to be addressed in the context of the second judicial reviewproceeding. It was not until the hearing in December 2019 that Duffy Jindicated that Courtney J's conclusions could not be disturbed byanother High Court Judge, and that an appeal was the only effectiveoption.(d) The hearing of the second judicial review proceeding was split into two.The second hearing took place in May 2020, with judgment deliveredon 1 December 2020. An appeal before that judgment was deliveredwould have risked lengthening the underlying Family Courtproceedings.(e) Now that CA19/2021 has been filed, it is timely for the proposed appealagainst the first High Court judgment to be advanced.[13] If an extension of time to appeal is granted, the Family Court seeks directionsthat:(a) the Attorney-General be permitted to appear to prosecute the appeal;(b) the proposed appeal and the related appeal in CA19/2021 be heardtogether; and(c) the Attorney-General be permitted to appear to contradict the appeal inCA19/2021.[14] The application for an extension of time to appeal is supported by Mrs D.Opposition to extension of time[15] Mr and Mrs A oppose the application for an extension of time to appeal.They emphasise the lengthy delay (more than two and a half years) since the expiry ofthe appeal date. They submit that they have relied on the first High Court judgmentin the subsequent conduct of the litigation. If a timely appeal had been brought, thesecond judicial review proceeding could have been avoided. The justifications putforward by the Family Court to explain the delay are inadequate, especially in theabsence of any indication from the Family Court at an earlier stage that it would seekto prosecute an appeal. If an extension of time is granted, the delay in appealing willhave caused them significant prejudice, including wasted costs.[16] Mr and Mrs A submit that this is a case "in which the merits or otherwise ofa proposed appeal will be overwhelmed by other factors (such as the length of thedelay and the extent of the prejudice to the respondent or others) and so will not requireconsideration".19 But to the extent that the merits of the appeal are relevant, theysubmit that those merits are weak. Whether or not the children are treated as "parties"to the proceeding for the purposes of s 133(7) of COCA, the court should take intoaccount a child's views in relation to decisions affecting them under ss 4 and 5 ofCOCA. If leave to appeal from the first High Court judgment is granted, that judgmentwill be supported by them on other grounds.[17] Mr and Mrs A submit that if an extension of time is granted:(a) Leave to appeal should be limited strictly to the issue of mandatoryrelevant considerations under s 133 of COCA, with theAttorney-General's role confined to advancing submissions regardingthe appropriateness of seeking a child's view about whether a s 133report is necessary, and the practical implications of the role of lawyerfor the child. All other aspects of the first High Court decision shouldremain on foot.(b) The Family Court should be required to meet its own costs of theappeal, whatever the outcome.(c) The Family Court should be required to pay costs for all steps taken byMr and Mrs A since the first High Court judgment.Discussion[18] The delay in appealing (some two and a half years) is on any view significant.We do not consider that this delay can be wholly explained by reference to the secondjudicial review proceeding. The implications of the first High Court judgment forestablished practice in relation to s 133 reports should have been readily apparent, andany appeal should have been filed in 2018 before the second judicial review19 Almond v Reed, above n 2, at [39(a)].proceeding was commenced. The lengthy delay is unfortunate, and there is real forcein the submission that the possibility of an appeal should have been signalled earlieras this could have avoided all or most of the cost (human and financial) of the secondjudicial review proceeding.[19] However, we consider that this is a case in which the wider public significanceof the issues raised by the proposed appeal justifies an extension of time, despite thelengthy delay in pursuing the appeal. The proposed appeal raises seriously arguableissues in relation to whether s 133(7) or other provisions of COCA require that theviews of a child be ascertained before directing a psychological report under s 133.If so, that would as we understand it represent a significant departure from currentpractice in the Family Court. It is in the interests of justice that this Court considerand determine that issue.[20] It is also in the interests of justice that this issue be properly before this Courtwhen it hears the appeal in CA19/2021: it would be artificial and unsatisfactory forthis Court to hear the appeal from the third High Court judgment, which took the firstHigh Court judgment as its starting point, without addressing whether thefirst High Court judgment was itself correct. The continuing delay in determining theFamily Court proceedings, which would normally be a factor in considering whetherto grant an extension of time to appeal, is not a material factor in this case incircumstances where CA19/2021 is already before this Court, and any furtherconsideration by the Family Court of whether a s 133 report should be obtained willneed to await the determination of that appeal.[21] Rule 29A of the Rules does not appear to contemplate the grant of an extensionof time to pursue an appeal subject to restrictions in relation to the issues to be raisedon appeal, where the original right of appeal was a general one. But in any event, theissues in this case are too closely interrelated for any workable distinction to be drawn.We will therefore grant an extension of time to appeal from the first High Courtjudgment without the subject-matter restrictions contended for by Mr and Mrs A.[22] We will also make directions along the lines sought by the Family Court setout at [13] above. It is possible for a lower court or tribunal that is named asa respondent in judicial review proceedings in the High Court to pursue an appeal fromthe High Court judgment in those judicial review proceedings.20 But it is not normallyappropriate for a lower court to play an active role in judicial review proceedingsbefore the High Court or on appeal. We consider that it is more appropriate for theAttorney-General to take responsibility for prosecuting the appeal, as contemplated bythe joint memorandum filed by counsel for the Family Court and for theAttorney-General. The appropriate mechanism to enable this to occur is in our viewthat leave should be granted to the Attorney-General to intervene in this appeal, andin CA19/2021, on the following terms:(a) The Attorney-General may file written submissions in both appeals.(b) Counsel for the Attorney-General may appear at the hearing of theappeals and make oral submissions on both appeals.(c) The Attorney-General is not entitled to seek costs in respect of theseinterventions.[23] It would not be appropriate for us to make any other orders in relation to thecosts of the appeal before it has been heard. But the history of the proceedings, andthe delay in bringing this appeal, are factors that may be considered in relation to costswhen the two appeals are heard.Application by NZLS to intervene[24] The NZLS has applied for leave to intervene in this appeal, if an extension oftime is granted. That application is opposed by Mr and Mrs A. The application issupported by the Family Court and Mrs D.[25] The NZLS was granted leave to intervene in the second judicial reviewproceedings in the High Court and has been granted leave to intervene inCA19/2021.2120 See for example Auckland District Court v Attorney-General [1993] 2 NZLR 129 (CA), a decisionof a Full Court of this Court on an appeal brought by the District Court from a successfulapplication for judicial review of a decision of a judge of that Court.21 DN v Family Court at Auckland CA19/2021, 22 April 2021 (Minute No 2 of Goddard J).[26] We consider that this Court would be assisted by receiving submissions fromthe NZLS in relation to the operation of s 133 of COCA, and whether the views of thechildren should have been sought before directing a psychologist's report under s 133.Leave is granted to the NZLS to intervene in CA50/2021 on the following terms:(a) NZLS may file and serve written submissions in relation to theoperation of s 133 of COCA, and whether the views of the childrenshould have been sought before directing a psychologist's report unders 133.(b) Counsel for NZLS may appear at the hearing of the appeal.(c) Counsel for NZLS may make oral submissions at the hearing if theCourt considers that this will be of assistance.(d) The NZLS is not entitled to seek costs in respect of its intervention.Timetabling[27] The parties have identified a number of matters that require timetabling in lightof the outcome of this application. That includes the question of whether Mr Cooke,who has been appointed as lawyer for the children in the Family Court, should beappointed as lawyer for the children in this Court.[28] Timetabling directions in relation to this appeal and CA19/2021 are set outbelow.Result[29] An extension of time is granted for the Family Court to appeal against thedecision of the High Court in [2018] NZHC 1638.[30] We direct that this appeal be heard together with CA19/2021.[31] Leave is granted to the Attorney-General to intervene in this appeal and inCA19/2021 on the terms set out at [22] above.[32] Leave is granted to the NZLS to intervene in this appeal on the terms set outat [26] above.[33] We make the following timetable directions:(a) The notice of appeal by the Family Court must be filed and served byFriday, 11 June 2021.(b) A joint case on appeal for this appeal and for CA19/2021 must be filedby Friday, 2 July 2021. Counsel for Mr and Mrs A and for theAttorney-General should liaise in relation to the preparation of the caseon appeal.(c) The parties must file memoranda in relation to whether a lawyer for thechildren should be appointed in this Court, and the terms of anyappointment, by Friday, 2 July 2021.(d) A telephone conference will be convened by the Registrar in the weekbeginning 5 July 2021.Solicitors:Crown Law Office, Wellington for ApplicantDuncan Cotterill, Auckland for First RespondentArmstrong Barton, Whanganui for Third Respondent