LOWE v AUCKLAND FAMILY COURT [2017] NZHC 209

LOWE v AUCKLAND FAMILY COURT [2017] NZHC 209

Interim relief (stay) was refused because the applicant failed the threshold of showing a position to preserve that would be defeated by continuation of the Family Court proceedings, and because a stay would be contrary to the child's welfare and best interests by delaying urgent Family Court processes (including a s133 psychological report). In addition, key grounds for review (recusal and some interlocutory challenges) had low prospects of success such that interim relief was not justified.

Citation
[2017] NZHC 209
Parties
Applicant: Lowe; First Respondent: Auckland Family Court; Second Respondent: Way
Court
High Court
Jurisdiction
New Zealand
Judgment Date
21 February 2017
Procedural Posture
Judicial Review of Family Court Interlocutory Decisions Arising From Care of Children Act and Domestic Violence Act Proceedings; Application for Interim Relief (stay) Under Judicature Amendment Act 1972 / Interim Relief Hearing; Application for Stay Dismissed; Substantive Judicial Review Pending (substantive Hearing Scheduled)
Outcome
Application for interim relief (stay of Family Court proceedings) dismissed
Legal Topics
Interim Relief, Stay of Proceedings, Recusal, Natural Justice, Striking Affidavit Evidence, S 133 Psychological Report, S 139 a Leave to Reapply, S 9 Domestic Violence Act, Case Management
Family Law Judicial Review Child Welfare Domestic Violence Civil Procedure Interim Relief Stay of Proceedings Recusal +6 more

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Parties

Lowe

Applicant

Auckland Family Court

First Respondent

Way

Second Respondent

Procedural Posture

Judicial Review of Family Court Interlocutory Decisions Arising From Care of Children Act and Domestic Violence Act Proceedings; Application for Interim Relief (stay) Under Judicature Amendment Act 1972 / Interim Relief Hearing; Application for Stay Dismissed; Substantive Judicial Review Pending (substantive Hearing Scheduled)

Legal Issues

  1. 1 Whether interim relief (stay) was reasonably necessary to preserve the applicant's position pending judicial review
  2. 2 Whether the Family Court decisions (dismissal of 2015 DVA application, striking affidavits, directing 2016 DVA to proceed on notice, restricting evidence to post-August 2016) breached natural justice
  3. 3 Whether Judge Burns should have recused himself pending a recusal application

Ratio Decidendi

Interim relief (stay) was refused because the applicant failed the threshold of showing a position to preserve that would be defeated by continuation of the Family Court proceedings, and because a stay would be contrary to the child's welfare and best interests by delaying urgent Family Court processes (including a s133 psychological report). In addition, key grounds for review (recusal and some interlocutory challenges) had low prospects of success such that interim relief was not justified.

Court Disposition

Application for interim relief (stay of Family Court proceedings) dismissed

Orders

  • Interim application for stay dismissed
  • Certain late affidavit material of the applicant excluded; Exhibits A and B of the applicant's late affidavit and the GP letter dated 27 January 2017 (part of Exhibit D) admitted; remainder excluded