ROBERTS v CRESSWELL [2023] NZCA 168

ROBERTS v CRESSWELL [2023] NZCA 168 [12 May 2023]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.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA545/2022[2023] NZCA 168BETWEEN ROBERTSAppellantAND CRESSWELLRespondentCounsel: Applicant (T F Dunstan) in personV A Crawshaw KC and S M Wilson for AppellantS N van Bohemen, A J Summerlee andE S M L B Gawar Kohistani for RespondentJudgment:(On the papers)12 May 2023 at 10.30 amJUDGMENT OF BROWN JThe application for access to the requested documents is declined.____________________________________________________________________REASONS[1] On 27 February 2023 this Court delivered judgment1 on an appeal under theCare of Children Act 2004 from a High Court judgment2 quashing a Family Courtorder3 for the return of two children to France.1 Roberts v Cresswell [2023] NZCA 36.2 Cresswell v Roberts [2022] NZHC 1265.3 [Roberts v Cresswell] [2021] NZFC 12991.[2] On 17 April 2023 Ms Dunstan filed an application under the Senior Courts(Access to Court Documents) Rules 2017 seeking copies of the decision of this Court,the bundle of authorities relied upon by the appellants and relevant submissions. Thatapplication has been referred to me as the presiding Judge in Roberts v Cresswell.[3] The reasons provided by Ms Dunstan for her application are as follows:1. This is a matter of public importance as recorded in news articles on8 April 2023.2. This is a precedent [case] rightfully acknowledging article 13 of UNCCRand should be available.3. This case is a strong precedent for my proceedings in Family Court,concealing this decision will prejudice me in court proceedings,preventing a fair outcome.[4] The application is opposed by both the appellant and the respondent, exceptfor the request for the published decision, which is already available in any event.[5] Rule 7 states that a person may not access a document, court file or anyjudgment or order that relates to a proceeding brought under various enactments unlessa Judge is satisfied (a) that there is a good reason for providing access or (b) the personapplying is a party to the proceeding. The Care of Children Act is one suchenactment.4 Ms Dunstan was not a party to the appeal and hence she must satisfy methat there is a good reason for permitting the access she requests.[6] In determining a request for access under r 11, I must consider the nature of,and the reasons given for, the request and take into account each of the matters listedin r 12 that is relevant to the request or any objection to the request.[7] In particular r 12(c) refers to the right to bring and defend civil proceedingswithout the disclosure of any more information about the private lives of individualsthan is necessary to satisfy the principle of open justice. Rule 12(d) refers to theprotection of other confidentiality and privacy interests (including those of childrenand other vulnerable members of the community). Rule 12(g) refers to whether adocument to which the request relates is subject to any restriction under r 7.4 Rule 7(2)(d).[8] I am not satisfied that there is any good reason for permitting Ms Dunstan tohave access to the parties' submissions, which referred to sensitive and confidentialinformation about the children and their parents, the publication of which is prohibitedby ss 11B–11D of the Family Court Act 1980. It is not apparent to me how any of thatmaterial could be relevant to any proceedings in which Ms Dunstan is involved in theFamily Court.[9] Counsel also submit that the bundle of authorities prepared for the appealhearing do not form part of the formal Court record in respect of which an applicationfor access can be made. I agree.5[10] For these reasons Ms Dunstan's application for access to the requesteddocuments is declined.Solicitors:Glaister Ennor, Auckland for AppellantParry Field Lawyers, Christchurch for Respondent5 Senior Courts (Access to Court Documents) Rules 2017, rr 4 and 8(1).