NEWTON v FAMILY COURT AT AUCKLAND [2022] NZCA 207

NEWTON v FAMILY COURT AT AUCKLAND [2022] NZCA 207 [24 May 2022]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 AOTEAROACA19/2021[2022] NZCA 207BETWEEN D NEWTONFirst AppellantL NEWTONSecond AppellantAND FAMILY COURT AT AUCKLANDFirst RespondentR F VON KEISENBERGSecond RespondentB LAKEThird RespondentAND ATTORNEY-GENERALIntervenerNEW ZEALAND LAW SOCIETY | TEKĀHUI TURE O AOTEAROAIntervenerCA50/2021BETWEEN FAMILY COURT AT AUCKLANDAppellantAND D NEWTONFirst RespondentL NEWTONSecond RespondentB LAKEThird RespondentAND ATTORNEY-GENERALIntervenerNEW ZEALAND LAW SOCIETY | TEKĀHUI TURE O AOTEAROAIntervenerHearing: 23–24 November 2021Court: Cooper, Collins and Goddard JJCounsel: DAT Chambers QC for First and Second Appellant in CA19/2021and First and Second Respondent in CA50/21No appearance for First Respondent in CA19/2021 and Appellantin CA50/2021V A Crawshaw QC and S M Wilson for Second Respondent inCA19/2021No appearance for Third Respondent in CA19/2021 and ThirdRespondent in CA50/2021A Chan QC, B M McKenna and C N Tocher for Attorney-Generalas IntervenerACM Fisher QC for New Zealand Law Society | Te Kāhui Ture oAotearoa as IntervenerA J Cooke as lawyer representing childrenJudgment: 24 May 2022 at 3.00 pmJUDGMENT OF THE COURTCA19/2021A The appeal is dismissed.B The appellants must pay costs to each of the second and third respondentsfor a standard appeal on a band A basis with usual disbursements.We certify for second counsel.C This Court's file may not be searched by any person without the leave ofa judge, which must be sought by written application on notice to theparties.CA50/2021A The appeal is allowed.B The proceeding is remitted back to the Family Court to determinewhether, in the current circumstances, a psychological report should beobtained under s 133 of the Care of Children Act 2004. In making thatdetermination the Family Court must have regard to this judgment.C Costs in respect of this appeal are to lie where they fall.D This Court's file may not be searched by any person without the leave ofa judge, which must be sought by written application on notice to theparties.____________________________________________________________________Table of contentsPara noIntroduction [1]Ascertaining the views of a child before making a s 133 order [5]Judicial review of s 133 orders [6]LFC reports are not amenable to judicial review [12]Implications for these proceedings [16]Relevant legislation [18]Care of Children Act 2004 [19]Family Court Act 1980 [33]Family Court (Supporting Children in Court) Legislation Act 2021 [34]Convention on the Rights of the Child [38]The proceedings — an overview [40]Application for parenting order by maternal grandmother [40]Application for parenting order by maternal grandmother [43]First s 133 order [45]First judicial review proceeding [62]First High Court judgment [66]Judge de Jong's October 2018 minute [68]Recall application in relation to October 2018 minute [74]Second s 133 order [80]Second judicial review proceeding [89]Second and third High Court judgments [95]First High Court judgment [100]Second High Court judgment [113]Third High Court judgment [126]Second cause of action: LFC report ultra vires [127]Third cause of action: breach of natural justice [136]The appeals before this Court [150]The Newtons' appeal against the third High Court judgment [150]Family Court appeal from first High Court judgment [154]Issues on appeal [160]The evidence before the High Court and this Court [166]Report from Children's Commissioner [169]Evidence of Professor Seymour [174]Joint memorandum on Family Court practice [182]"Evidence" on interpretation of COCA [185]Issue one: appropriateness of judicial review of s 133 orders [192]The issue [192]Submissions [193]Discussion [196]Issue two: ascertaining children's views in relation to obtainings 133 report [207]The issue [207]Submissions for the Newtons [208]Submissions of other parties [211]Discussion [224]Issue three: pre-determination [244]The issue [244]Attorney-General's submissions [245]Submissions for the Newtons [249]Discussion [253]Issue four: reviewability of LFC report [269]The issue [269]Submissions on appeal [270]Discussion [275]Issue five: claim for removal of documents from the court file [290]The issue [290]Submissions on appeal [292]Discussion [297]Relief [307]Costs [310]Result [312]REASONS OF THE COURT(Given by Goddard J)Introduction[1] The two appeals before this Court have their genesis in an application for aparenting order under s 48 of the Care of Children Act 2004 (COCA) in respect of twochildren, whom we will refer to as Paul and Susan. The application was made by theirmaternal grandmother (whom we refer to as Ms B Lake). She seeks an order providingfor her to have contact with Paul and Susan. The application is opposed by thechildren's father and stepmother (whom we refer to as Mr and Mrs Newton), withwhom the children live.1[2] Ms B Lake's application was made in June 2017, almost five years ago.No progress has been made towards a substantive determination of that applicationbecause the parties have been embroiled in litigation in the Family Court, in theHigh Court, and now in this Court, about whether a psychological report in respect ofthe children should be obtained under s 133 of COCA.[3] The appeals raise three main legal issues:(a) Is it necessary, before a Family Court judge makes an order under s 133of COCA that a psychological report be prepared, that the judgeascertain and take into account the views of the child who would be thesubject of that report?(b) Is it open to a party to proceedings under COCA to apply to theHigh Court for judicial review of a s 133 order, or is such an applicationan abuse of process?(c) In what circumstances, if any, can a party to proceedings under COCAseek judicial review of reports prepared by a person appointed aslawyer for the child (LFC) under that Act?[4] We summarise our conclusions on each of those issues as follows.Ascertaining the views of a child before making a s 133 order[5] A Family Court judge may consider, in a particular case, that it is desirable toascertain the views of a child in connection with a proposal that a s 133 report beobtained. But the judge is not required to do so in every case. Whether it is appropriateto ascertain the child's views, and the specific issues in respect of which their views1 We have adopted fictitious names for the children and their parents and grandmother to protectthe children's privacy.should be obtained, are matters for the judgement of the Family Court judge havingregard to ss 4 and 6 of COCA and the particular circumstances of the case.Judicial review of s 133 orders[6] Judicial review is in principle available in respect of an interlocutory decisionmade by a Family Court judge under COCA, where the judge has failed to exercise astatutory power in accordance with that Act. But such a decision will be set aside injudicial review proceedings only where such relief is consistent with the scheme ofthe legislation, including the carefully structured appeal rights set out in s 143 ofCOCA. Judicial review is intended to ensure fidelity to the statutory scheme, not toundermine it.[7] Section 143(3A) of COCA expressly provides that there is no right of appealfrom a s 133 order, even by leave. That restriction reflects two considerations: thenature of a s 133 order — it is a preliminary order made to obtain information that thejudge considers will assist the court to make substantive decisions — and the need forprompt decision-making under COCA. It would undermine the statutory objective setout in s 4(2) of making decisions in a timeframe consistent with a child's sense of timeif parties could delay obtaining a s 133 report, and delay informed decision-makingon a substantive application, by pursuing challenges to s 133 decisions.[8] It would be inconsistent with the statutory scheme for relief to be granted injudicial review proceedings in respect of a decision under s 133 except in a very clear-cut case of fundamental error. An order under s 133 will not be set aside in judicialreview proceedings merely because the High Court judge considers that the criteriaset out in s 133(6) were not met. The High Court judge would need to be persuadedthat it was not open to the Family Court judge to form the view that the criteria weremet.[9] Section 133(7) of COCA requires the court to have regard to the parties' wishesbefore deciding whether or not to make a s 133 order, if the court knows the parties'wishes or can speedily ascertain them. But the child who is the subject of anapplication for a parenting order is not a party to the proceedings. Section 133(7) doesnot require the court to ascertain the child's views. Nor are those views a mandatoryrelevant consideration before a Family Court judge can make an order for a s 133report to be obtained. A s 133 order cannot be challenged in judicial reviewproceedings on the basis that the child's views were not obtained before the order wasmade.[10] Judicial review of a s 133 order may be granted in rare circumstances where:(a) the ground of review is consistent with the statutory scheme. Thus forexample judicial review might be sought on the grounds of apparentbias; and(b) it is necessary to do so in order to avoid consequences that could not beremedied by waiting for the Family Court to make a final decision, anda party exercising rights of appeal in respect of that final decision.[11] Review of a s 133 order on the grounds of pre-determination is also in principleavailable. But care needs to be taken to distinguish between prompt decision-makingon a frequently encountered preliminary issue by a well-prepared judge withsubstantial experience of such matters, and a decision made by a judge with a closedmind that is made up in advance, and is not open to persuasion. Only the latteramounts to pre-determination.LFC reports are not amenable to judicial review[12] The report of an LFC appointed under s 7 of COCA is simply a submission onthe facts and the law made by the LFC to the court on behalf of the child. It decidesnothing. It will be taken into account by the judge along with the parties' submissions,and the other material before the court. Any decisions affecting the parties and thechild are made by the judge, who may or may not accept the submissions of the LFC.[13] A report prepared by an LFC is not amenable to judicial review. The LFC isnot exercising a statutory power of decision, or any other form of statutory power,when preparing a report. Nor is there any basis for judicial review of an LFC's reportat common law.[14] The LFC is an officer of the Family Court, under the direction and supervisionof that court. If there are concerns about the conduct of an LFC, there are establishedmechanisms for making complaints to the Family Court and to the New Zealand LawSociety | Te Kāhui Ture o Aotearoa (NZLS). Judicial review is neither necessary norappropriate in order to ensure proper performance by an LFC of their statutory andprofessional responsibilities.[15] An order made by a Family Court judge cannot be challenged in judicial reviewproceedings on the basis that it was made in reliance on an "ultra vires" report by anLFC. It is conceptually incoherent to describe submissions by an LFC as "ultra vires",however wrong in law or inappropriate they may be. The submissions of an LFC thatare wrong in law are not unlawful: they are simply wrong. Other parties can makesubmissions pointing out the respects in which they consider an LFC's submissionsare wrong or inappropriate. The judge then makes a decision. The legislation sets outthe rights of appeal to the High Court that are available in respect of differentcategories of decision. Judicial review of the judge's decision may also be availablein rare circumstances, as already mentioned. But the judge's decision cannot be thesubject of a collateral attack dressed up as an application for judicial review of theLFC's report. It is an abuse of process to attempt to do so.Implications for these proceedings[16] The consequence of our findings for the present proceedings is that theFamily Court will need to consider whether a s 133 order should be made in the currentcircumstances, having regard to the guidance we have provided about the operation ofs 133 and the interplay between that provision and s 6 of COCA. The Family Courtjudge may ask the LFC to ascertain the views of the children on their willingness tospeak with a psychologist, and in particular on whether they are happy to speak withthe psychologist who prepared s 133 reports in 2011 and 2014, if the judge considersthat it would be helpful to do so in this particular case. But that will be a matter forthe judge. Obtaining the children's views is not a prerequisite for the making of as 133 order.[17] Our reasons are set out in more detail below.Relevant legislation[18] Before we outline the lengthy procedural history of these proceedings, it ishelpful to set out the statutory provisions that govern the grandmother's applicationfor a parenting order, and the circumstances in which an order may be made unders 133 of COCA for a psychological report to be obtained.Care of Children Act 2004[19] The purpose of COCA is set out in s 3(1). It is to:(a) promote children's welfare and best interests, and facilitate theirdevelopment, by helping to ensure that appropriate arrangements arein place for their guardianship and care; and(b) recognise certain rights of children.[20] The fundamental principle governing decision making under COCA is set outin s 4. That provision emphasises that the welfare and best interests of a child areparamount:4 Child's welfare and best interests to be paramount(1) The welfare and best interests of a child in his or her particularcircumstances must be the first and paramount consideration—(a) in the administration and application of this Act, for example,in proceedings under this Act; and(b) in any other proceedings involving the guardianship of, or therole of providing day-to-day care for, or contact with, a child.(2) Any person considering the welfare and best interests of a child in hisor her particular circumstances—(a) must take into account—(i) the principle that decisions affecting the child shouldbe made and implemented within a time frame that isappropriate to the child's sense of time; and(ii) the principles in section 5; and(b) may take into account the conduct of the person who isseeking to have a role in the upbringing of the child to theextent that that conduct is relevant to the child's welfare andbest interests.[21] Section 5 sets out principles relevant to a child's welfare and best interests.Paragraph (b) provides that "a child's care, development, and upbringing should beprimarily the responsibility of his or her parents and guardians". Paragraph (e)provides that "a child should continue to have a relationship with both of his or herparents, and a child's relationship with his or her family group, whānau, hapū, oriwi should be preserved and strengthened."[22] Section 6 provides that in certain proceedings a child must have a reasonableopportunity to express their views on matters that affect them, and those views mustbe taken into account:6 Child's views(1) This subsection applies to proceedings involving—(a) the guardianship of, or the role of providing day-to-day carefor, or contact with, a child; or(b) the administration of property belonging to, or held in trustfor, a child; or(c) the application of the income of property of that kind.(2) In proceedings to which subsection (1) applies,—(a) a child must be given reasonable opportunities to expressviews on matters affecting the child; and(b) any views the child expresses (either directly or through arepresentative) must be taken into account.[23] Section 7 provides for the appointment of a lawyer to represent a child inproceedings under COCA:7 Appointment of lawyer to represent child in proceedingsA court may appoint, or direct the Registrar of the court to appoint, alawyer to represent a child who is the subject of, or who is a party to,proceedings (other than criminal proceedings) under this Act if thecourt—(a) has concerns for the safety or well-being of the child; and(b) considers an appointment necessary.[24] Section 48(1) provides for the court to "make a parenting order determiningthe time or times when specified persons have the role of providing day-to-day carefor, or may have contact with, [a] child". An application for a parenting order must bemade by an eligible person, as defined in s 47. It is common ground that the children'sgrandmother is an eligible person.[25] Section 133 provides for the Family Court to seek reports from various sourcesto assist with the determination of proceedings: cultural reports, medical reports,psychiatric reports and psychological reports.[26] Section 133(4A) provides that in certain proceedings, including an applicationfor a parenting order, the court may obtain a psychological report. The meaning of theterm "psychological report" for this purpose is set out in s 133(1):psychological report means a report that is about the child who is the subjectof an application and that covers any or all of the following matters:(a) how current arrangements for the child's care are working for thechild:(b) the child's relationship with each party, including, if appropriate, thechild's attachment to each party:(c) the child's relationship with other significant persons in the child'slife:(d) the effect or likely effect on the child of each party's parenting skills:(e) the effect or likely effect on the child of the parties' ability orotherwise to co-operate in the parenting of the child:(f) the advantages and disadvantages for the child of the options for thecare of the child:(g) any matter that the court specifies under subsection (5)(b)(ii)[27] Section 133(5) provides that where the court wishes to obtain a psychologicalreport, either the court or the Registrar must request a psychologist to prepare thereport. The court must specify which of the matters listed in paragraphs (a) to (f) ofthe definition of psychological report the report is to cover. The court may also specifyany matter not listed in those paragraphs that the report is to cover.[28] The circumstances in which the Family Court may seek a psychological reportare set out in s 133(6) and (7), which are at the heart of the issues raised by this appeal:(6) The court may act under subsection (5) only if—(a) the court is satisfied that the information that thepsychological report will provide is essential for the properdisposition of the application; and(b) the court is satisfied that the psychological report is the bestsource of the information, having regard to the quality,timeliness, and cost of other sources; and(c) the court is satisfied that the proceedings will not be undulydelayed by the time taken to prepare the psychological report;and(d) the court is satisfied that any delay in the proceedings will nothave an unacceptable effect on the child; and(e) the court does not seek the psychological report solely orprimarily to ascertain the child's wishes.(7) If the court is entitled by subsection (6) to act under subsection (5)and if the court knows the parties' wishes about the obtaining of apsychological report or can speedily ascertain them, the court musthave regard to the parties' wishes before deciding whether or not toact under subsection (5).[29] The court may direct that meetings take place between the report writer andthe child and the parties under s 133(8) and (9):(8) If the court acts under subsection (5), it may give directions at thesame time on arrangements for—(a) the child to meet with the report writer; or(b) 1 or more of the parties to meet with the report writer; or(c) the child and 1 or more of the parties to meet with the reportwriter.(9) If a party or the child fails to meet with the report writer as directedby the court,—(a) the report writer must notify the court; and(b) the court may make further directions.[30] After the report is provided to the Family Court, the Registrar provides copiesof the report to the lawyers for the parties, or in certain circumstances to the partiesthemselves, and to any lawyer appointed to act for the child.2[31] Before the report is copied to an LFC, the court must consider whether thereport may be given or shown to the child.3 An LFC may give or show the report tothe child for whom the lawyer is acting only if the court so orders. But "in every casethe [LFC] must explain to the child the purpose and contents of the report, unless the[LFC] considers that to do so would be contrary to the welfare and best interests of thechild".4[32] Section 143 provides for appeals to the High Court from certain decisions ofthe Family Court. There is a right of appeal from substantive determinations.5There is a right of appeal from interlocutory and interim orders with the leave of theFamily Court. But, very importantly for present purposes, s 143(3A)(b)(iii) expresslyexcludes appeals from s 133 decisions:143 Appeals to High Court(1) This subsection applies to a decision of the Family Court or DistrictCourt, in proceedings under this Act (other than criminalproceedings), to—(a) make or refuse to make an order (other than an interlocutoryor interim order); or(b) dismiss the proceedings; or(c) otherwise finally determine the proceedings.(2) A party to proceedings in which there is made a decision to whichsubsection (1) applies, or a child to whom those proceedings relate,may appeal to the High Court against the decision. However, if theproceedings are under section 46C or 46R, the party or child mayappeal only with the leave of the High Court.(3) A party to proceedings under this Act in the Family Court orDistrict Court in which an interlocutory or interim order is made, or achild to whom those proceedings relate, may, with the leave of theFamily Court or District Court (as the case requires), appeal to theHigh Court against the order.2 Care of Children Act 2004, s 134.3 Section 134(4).4 Section 134 (5).5 Section 143(1).(3A) However, no appeal may be made to the High Court under subsection(3) in relation to—(b) a decision under—(i) section 7 to appoint, or to direct the Registrar of thecourt to appoint, a lawyer to represent a child; or(ii) section 130 to appoint, or to direct the Registrar of thecourt to appoint, a lawyer to assist the court; or(iii) section 133 to obtain a written cultural report,medical report, psychiatric report, or psychologicalreport.(emphasis added)Family Court Act 1980[33] Section 9B of the Family Court Act 1980 provides guidance on the role of alawyer appointed to represent a child under COCA and certain other Acts:9B Role of lawyer appointed to represent child or young person inproceedings(1) The role of a lawyer who is appointed to represent a child or youngperson in proceedings is to—(a) act for the child or young person in the proceedings in a waythat the lawyer considers promotes the welfare and bestinterests of the child or young person:(b) ensure that any views expressed by the child or young personto the lawyer on matters affecting the child or young personand relevant to the proceedings are communicated to thecourt:(c) assist the parties to reach agreement on the matters in disputein the proceedings to the extent to which doing so is in thebest interests of the child or young person:(d) provide advice to the child or young person, at a levelcommensurate with that child's or young person's level ofunderstanding, about—(i) any right of appeal against a decision of the court; and(ii) the merits of pursuing any such appeal:(e) undertake any other task required by or under any other Act.(2) To facilitate the role set out in subsection (1)(b), the lawyer must meetwith the child or young person and, if it is appropriate to do so,ascertain the child's or young person's views on matters affecting thechild or young person relevant to the proceedings.(3) However, subsection (2) does not apply if, because of exceptionalcircumstances, a Judge directs that it is inappropriate for the lawyer tomeet with the child or young person.(4) A lawyer appointed to represent a child or young person inproceedings may—(a) call any person as a witness in the proceedings:(b) cross-examine witnesses called by any party to theproceedings or by the court.Family Court (Supporting Children in Court) Legislation Act 2021[34] The Family Court (Supporting Children in Court) Legislation Act 2021 is notyet in force. It will come into force on the earlier of a date appointed by Order inCouncil and the date two years after Royal Assent.6 But we refer to it because itcontains some helpful guidance on the purpose of s 6 of COCA. And we accept thesubmission of Ms Chambers QC for the Newtons that this Act confirms the "directionof travel" in relation to ascertaining children's views in proceedings that affect them.[35] The Act will amend s 5 of COCA, which sets out principles relating to a child'swelfare and best interests, by adding a new paragraph (g):(g) a child must be given reasonable opportunities to participate in anydecision affecting them.[36] The Act will amend s 6 of COCA by inserting a new subsection (1AAA) asfollows:(1AAA) The purpose of this section is to implement in New Zealand Article12 of the United Nations Convention on the Rights of the Child.6 Family Court (Supporting Children in Court) Legislation Act 2021, s 2.[37] The Act will also insert a new s 7AA:7AA Lawyer appointed to represent child must explain proceedings tochildA lawyer appointed under section 7 to represent a child must, if it isreasonably practicable to do so having regard to the age and maturityof the child, explain the nature of the proceedings to the child in amanner that the child is most likely to understand.Convention on the Rights of the Child[38] The United Nations Convention on the Rights of the Child (CRC) entered intoforce in September 1990.7 New Zealand ratified the CRC on 6 April 1993.[39] Section 6 of COCA is intended to give effect to art 12 of the CRC, as the news 6(1AAA) set out above confirms. Article 12 provides:Article 121. States Parties shall assure to the child who is capable of forming hisor her own views the right to express those views freely in all mattersaffecting the child, the views of the child being given due weight inaccordance with the age and maturity of the child.2. For this purpose, the child shall in particular be provided theopportunity to be heard in any judicial and administrative proceedingsaffecting the child, either directly, or through a representative or anappropriate body, in a manner consistent with the procedural rules ofnational law.The proceedings — an overviewApplication for parenting order by maternal grandmother[40] Paul was born in May 2008. Susan was born in January 2010. Their mother,whom we will refer to as Ms A Lake, was in a de facto relationship with Mr Newton.They lived together between June 2007 and August 2009. Susan was born after theyhad separated.[41] The arrangements for the care of the children were the subject of considerableconflict between the father and the mother from 2010 to 2014. The Family Court was7 Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989,entered into force 2 September 1990).called on to determine a range of issues in relation to those arrangements.The proceedings were case-managed by Judge de Jong. Reports were obtained froma psychologist under s 133 of COCA in 2011, and again in 2014, to inform the Court'sdetermination of those proceedings. On 30 June 2014 a final parenting order wasmade which provided for shared care between Mr Newton and Ms A Lake.[42] Ms A Lake died suddenly in January 2016. Following her death, Mr Newtonand his wife Mrs Newton took on the role of primary caregivers of the children.Mrs Newton was appointed an additional guardian of the children in July 2016. Thechildren live with Mr and Mrs Newton.Application for parenting order by maternal grandmother[43] In June 2017 the children's maternal grandmother, Ms B Lake, applied for aparenting order granting her regular contact with the children. The application wasopposed by the Newtons.[44] Mr and Mrs Newton requested that the parenting order application be dealtwith by Judge de Jong, as he had case managed the earlier proceedings and wasfamiliar with the family's background.First s 133 order[45] On 13 September 2017 Judge de Jong issued a memorandum and directions onthe papers. Mr and Mrs Newton had suggested, in a supporting memorandumaccompanying their notice of response to Ms B Lake's application, that noappointment of an LFC should be made due to the history of proceedings about thecare of the children, their vulnerability, and concern about having another professionalinvolved in the children's lives. The Judge noted that the difficulty with thatsubmission was that the Court would be unable to make a decision without obtainingthe views of the children. They had a right to be heard. And the evidence before theCourt raised concerns about the children's wellbeing. For these reasons, and becausethe children had previously had a lawyer acting for them, the Judge reappointedMs Cobcroft as LFC under s 7 of COCA and s 9B of the Family Court Act.[46] The Judge directed that an issues conference be scheduled before him ifpossible. Rule 416X of the Family Court Rules 2002 provides that the "purpose of anissues conference is to enable a Judge, having seen and spoken with the parties to anapplication, to make any orders or give any directions the Judge thinks fit".Ms Cobcroft was directed to file a memorandum no later than seven days before theissues conference.[47] The Judge's memorandum recorded that this might be a case where apsychological report should be obtained under s 133 of COCA.[48] The conference took place before Judge de Jong on 27 November 2017.The LFC filed a memorandum dated 17 October 2017 in advance of the conferenceoutlining the background to the proceedings and the steps she had taken up to thatdate. Neither of the parties filed a memorandum in advance of the conference.[49] At the beginning of the conference, the LFC handed up a second memorandum.There was a pause of about one minute while the Judge read that memorandum.It recorded that the LFC had been unable to interview the children. She describeddifficulties she had encountered in arranging an interview, and sought a direction thatshe be authorised to interview them at school. The memorandum concluded:Consideration should be given at the issues conference as to whether asection 133 report is necessary. The previous report writer was Renuka Wali.[50] Counsel for Ms B Lake then spoke. She supported the LFC's request for adirection that the LFC be able to see the children at school. She noted that the LFC"is also proposing that a section 133 report is appropriate here and my client's quitecomfortable with that".[51] Ms Chambers QC, who appeared for Mr and Mrs Newton, also handed up amemorandum. The Judge did not pause to read it, but asked Ms Chambers what herclients' position was. Ms Chambers advised the Judge that Mr and Mrs Newtonaccepted that Ms Cobcroft had to see the children, but had concerns about managingthat process. She advised the Judge that her instructions in terms of a s 133 reportwere "simply unclear at the moment". There were factors pulling both ways.One parent was saying yes, and one was not so sure. Ms Chambers suggested thattheir position be advised to the Court after Ms Cobcroft's report was filed. That couldbe dealt with by way of memorandum. Ms Chambers noted that Mr and Mrs Newton"are very protective [and] concerned about this litigation causing major problemsin regard to these children who are obviously extremely vulnerable".[52] After Ms Chambers had completed her submissions, the transcript of thehearing records the Judge as saying:So, Ms Cobcroft, I am very concerned about what's happening and I think weneed a 133 report straight away.[53] Ms Cobcroft endorsed that view, submitting that a s 133 report should becommissioned as soon as possible as there were lengthy delays in getting peopleappointed. She said it would be preferable if Ms Wali was available again. For herpart, she would file a report within 14 days.[54] The Judge then observed:Well we are going to get the report anyway. The speed of your report matterslittle.[55] We infer that the Judge was saying that the timing of Ms Cobcroft's report wasnot urgent because he would be directing that a s 133 report be obtained, which wouldtake some time.[56] The Judge went on to say that he intended to direct that a psychological reportbe obtained. He thought it was essential in this case given the dynamics on both sides.In relation to the brief for the psychologist the Judge said:In terms of the brief, probably we're asking the psychologist to ascertain thechildren's views about having a relationship with the maternal grandmotherand identify what influences or external forces, if you like, are likely to haveaffected the children's views. I'd be looking at the psychologist assessing thechildren's relationship with each party, the relevance of that being theaftermath of losing their mother and how the children are affected by that andhow that fits in with their relationships and the effect or likely effect on thechildren of having or not having a relationship with their maternalgrandmother and the advantages and disadvantages for the children of theproposed contact options and then looking at what recommendations, if any,about therapeutic support or intervention. So I don't know if anybody has anyother thoughts about the terms of reference but I think they cover the mainthings.[57] Ms Cobcroft expressed agreement with the suggested terms of reference.No other counsel spoke in response to the Judge's inquiry about the terms of reference.[58] In the context of the judicial review proceedings that resulted in the firstHigh Court judgment, described in more detail below, the High Court requested Judgede Jong to provide a report about the issues conference. In a memorandum dated1 June 2018 the Judge explained that he had been a touch typist since the age of 15and is "very computer savvy". He had many templates on his computer that he haddeveloped over the 12 years he had been a judge. One of the templates was an adaptedpsychologist's brief based on the brief prescribed by s 133. The Judge advised that heroutinely utilises the template at directions conferences to personalise thepsychologist's brief as required.[59] In this case, the Judge completed the s 133 brief on his computer. There was apause in the hearing of about two minutes while he did so. He then printed off copiesfor counsel on the printer in the courtroom. He dictated a minute which brieflydescribed the proceedings, and went on to deal with the s 133 report, saying:I am satisfied that it is essential for the proper disposition of these proceedingsthat a s 133 psychological report is directed. The children have not beenhaving contact with the maternal side of their family. I plan to make furtherdirections once the psychological report is to hand. Renuka Wali haspreviously been engaged as the psychologist on this file and is thereforefamiliar with the children and they with her. It is appropriate that she is usedfor this purpose if available.[60] The minute directed that a s 133 report should be prepared "as attached".The brief for the psychologist prepared by the Judge in the course of the hearing readas follows:1. A s133(1) psychological report is directed to assess the followinga) the children's views about having a relationship with theirmaternal grandmotherb) identify what, if any, influences/external pressures are likely tohave affected the children's viewsc) the children's relationship with each partyd) the effect or likely effect on the children of having, or not having,a relationship with their maternal grandmothere) the advantages and disadvantages for the children of theproposed contact optionsf) make recommendations about what, if any, therapeutic supportor intervention is required for this family[61] The Judge's minute was subsequently typed up and sent to the parties.It appears they received it in December 2017.First judicial review proceeding[62] In February 2018 Mr and Mrs Newton filed judicial review proceedingsseeking an order setting aside the s 133 order made by Judge de Jong on 27 November2017 (the first s 133 order). The first s 133 order was challenged on two grounds:pre-determination, and failure to take into account mandatory relevant considerations.[63] The Newtons pleaded that in making the order:(a) the Judge had arrived at the issues conference with a closed mind"as evidenced by his pre-prepared s 133 order that he pulled out and soordered at the conference"; and(b) as a result, the Judge failed to exercise the discretion required by s 133of COCA before making his order. He "did not allow time formeaningful submissions by the parties on the issue before making uphis mind".[64] The Newtons also pleaded that the Judge failed to take into account the relevantconsiderations listed in s 133(6) and (7). Section 133(6) lists five matters in relationto which the court must be satisfied. The Newtons pleaded that the Judge addressedonly one of these in his minute. And s 133(7) requires the court to have regard to theparties' wishes before deciding whether or not to order a report if the court knows theparties' wishes, or can speedily ascertain them. That criterion was not referred to inthe Judge's minute.[65] The Newtons sought an interim order that pending the determination of thejudicial review application, no further steps be taken to implement the order directinga psychologist's report. There was no opposition to such an order being made.In those circumstances, and given implementation of the order directing apsychologist's report would render the application for judicial review nugatory,Fitzgerald J considered an interim order was appropriate. She made the interim ordersought.8First High Court judgment[66] The first judicial review proceeding was heard by Courtney J on 15 June 2018.The application was successful. Courtney J found that a fair-minded lay observerwould have concluded that the issue had been pre-determined (first High Courtjudgment).9 Courtney J also considered that Judge de Jong had failed to addressrelevant mandatory considerations under s 133(6) and (7).10 In particular, Courtney Jconsidered that the views of the children should have been obtained before seekingthe s 133 report. She expressed the view that this was required by s 133(7), whichrequires the views of the parties to be obtained where that can be done speedily.11[67] The first High Court judgment is described in more detail below. For thepurpose of explaining the chronology of these proceedings, however, the key point isthat the order that a s 133 report be obtained was set aside and the matter remitted tothe Family Court for further consideration.Judge de Jong's October 2018 minute[68] The matter came back before Judge de Jong at a directions conference held on9 October 2018. The Judge noted that the directions conference followed on from thefirst High Court judgment setting aside the s 133 order for preparation of apsychological report. The Judge issued a minute following that conference(October 2018 minute).12 In the October 2018 minute Judge de Jong described the8 CB v Family Court at Auckland HC Auckland CIV-2018-404-177, 1 May 2018.9 AA v Family Court at Auckland [2018] NZHC 1638, [2018] NZAR 1101 [First High Courtjudgment] at [30].10 At [31].11 At [33].12 [Lake] v [Newton] FC Auckland FAM-2010-004-1891, 9 October 2018 (October 2018 minute).first High Court judgment as "extraordinary for a number of reasons I will refer to ina moment".13[69] The October 2018 minute records that the Judge understood that the Newtonshad filed complaints with the NZLS about the LFC and the lawyer for Ms B Lake.The minute continued:[4] Finally, the father and stepmother effectively want me to disqualifymyself from dealing with this file. The effect of the High Court judgment isto attack my honesty and integrity as a Judge to the extent I should step asideand perhaps even resign as a Judge. For this reason I plan to disqualify myselffrom dealing with this file in the future and will now make some commentsand directions to ensure this file is advanced.[5] First and foremost, I apologise to the young boy involved in this case,aged 10, and his sister, aged 8. Although I found a s 133 report was essentialfor the proper disposition of the proceedings I did not give full reasons forthis. In the context of the November 2017 15 minute directions conference,the overall state of the proceedings, and what counsel told me at the time ofthe conference, I thought the file would speak for itself. Evidently it did not.[6] Courtney J found I predetermined the need for a 133 report, that I hadlikely pre-prepared the psychological brief, that I did not invite input fromcounsel about the brief, that I did not allow lawyer for child to speak, that Icould not have been satisfied a s 133 report was necessary without knowingwhat the children's paediatrician had to say about them, and that I did not havethe views of the children as required by s133(7).[7] It may be helpful to the future of this case if it is known what wasactually in my mind and to briefly address each of the points raised byCourtney J especially as lawyer for the children was not involved in theHigh Court proceeding and, therefore, the views of the children were notavailable to Courtney J.[70] Judge de Jong then set out the background to the proceedings, and to theNovember 2017 issues conference. He described in some detail what happened at thatconference. He said that he had not decided in advance what orders he would makeat that conference.14[71] Judge de Jong recorded that he agreed with Courtney J that it would be usualto seek the views of children before seeking a s 133 report, but did not agree this was13 At [1].14 At [13].required by s 133(7) "because that subsection relates to parties, and the children arenot parties".15[72] Judge de Jong noted that the LFC and the maternal grandmother remained ofthe view that a s 133 report was essential for the proper disposition of the proceedings,but the Newtons were not convinced. It was not appropriate that he determine thisissue because of the findings made by Courtney J "and the objection raised by thefather and stepmother to my involvement".16[73] Ms Cobcroft sought to withdraw as LFC.17 The Judge granted her leave to doso. He directed that a new appointment of a senior LFC should be made as soon aspossible.18 He also directed that a one hour hearing be arranged urgently to determinewhether a s 133 report is required, and to consider the future conduct of theproceedings.19 The minute noted that the file should not be placed before him(or before another Judge who had disqualified herself from dealing with the matter).20Recall application in relation to October 2018 minute[74] The Newtons applied for recall of the October 2018 minute, expressingconcern that it would "taint any future Judge". In December 2018 Judge Burnsdirected that the recall application be placed before Judge de Jong.[75] It appears there was then a lengthy delay in the Family Court registry beforethe recall application was referred back to Judge de Jong. The Judge dealt with theapplication on the papers. He issued a memorandum dated 19 December 2019(the recall decision) in which he accepted that "there may at least be a slight risk offuture Judges being influenced by the contents of my minute".21 He accepted that itwas appropriate in the interests of justice to recall the minute and replace certainsentences.2215 At [17].16 At [18].17 At [19].18 At [20].19 At [22].20 At [23].21 [Lake] v [Newton] FC Auckland FAM-2010-004-1891, 19 December 2019 (Recall memorandumof Judge de Jong) at [8].22 At [13].[76] The Judge recorded that Mr and Mrs Newton had given evidence that they onlywanted him to disqualify himself from determining the issue of whether or not a s 133report was directed. The Judge accepted their position, but believed the effect of thatposition was that it was necessary for him to disqualify himself from any furtherinvolvement in the proceeding.23[77] Another matter raised by the Newtons was the Judge's expression of concernin the October 2018 minute about the LFC being "blocked from seeing the childrenby the stepmother".24 The Newtons deposed that this statement was wrong. The Judgerecorded that he was very concerned about the ongoing adult conflict, the effect on thechildren of this conflict, and the extraordinary delay. He observed that it was evidentfrom the Newton's evidence that there was at least some resistance to the LFC meetingthe children.25 But he was satisfied that it was in the interests of justice to recall theOctober 2018 minute and express this in more neutral terms.26[78] The Judge made the following orders and directions:27a. My 9 October 2018 minute is recalled on the following termsi. the fourth sentence in paragraph [3] is replaced to read"A copy of a Law Society complaint against lawyer for child,and seeking her removal, is attached to a memorandum dated17 September 2018 filed on behalf of the father andstep mother."ii. the first sentence of paragraph [4] is replaced to read"The father and stepmother seek to disqualify me fromdetermining whether a s133 report is directed but they arehappy for me to continue dealing with substantive matters.For my part, I believe I am left in an untenable position."iii. the third sentence of paragraph [8] is replaced to read"I assume the High Court did not have all those files at thejudicial review."iv. the third sentence of paragraph [17] is replaced to read "It wasalso relevant that I was concerned in November 2017 thatlawyer for child was allegedly being blocked from seeing thechildren by the step mother and that efforts were being made23 At [14].24 October 2018 minute, above n 12, at [17].25 Recall memorandum of Judge de Jong, above n 21, at [18]26 At [21].27 At [22].to delay the proceedings. These allegations are denied andwill no doubt be tested in due course."[79] The October 2018 minute was re-released with those modifications (there-released minute).Second s 133 order[80] The one hour hearing directed by Judge de Jong took place before Judge Burnson 3 December 2018. The parties were represented. Ms von Keisenberg, who hadbeen appointed as LFC, also appeared.[81] In advance of the hearing, on 11 November 2018, the LFC filed a memorandumwhich summarised the background to the application (the November 2018 LFCreport). The report included summaries of discussions she had had with the children,with the head teacher at Susan's school, and with Dr Smith, the children'spaediatrician. The LFC submitted that (contrary to the view expressed in the firstHigh Court judgment) the Family Court was not required by s 133(7) to ascertain theviews of the children with respect to obtaining a s 133 report. Section 133(7) did notapply to the children, as they were not parties to the application before the Court.[82] The LFC filed supplementary submissions on 3 December 2018, the day of thehearing. She submitted that a s 133 report was essential to enable the court to resolvethe contested application by Ms B Lake.[83] At that hearing, Ms Chambers identified four issues for determination:28(a) to determine the application for recall and correction of the Court'sdirections of 9 October 2018;(b) to determine issues regarding the Lawyer for Children's report and thepossible deletion of a number of paragraphs;(c) the ascertaining of the children's views regarding obtaining a s 133report;(d) whether the proceedings should be adjourned until the proceduralerrors/corrections have been made. Therefore, adjourning theapplication for the Court to direct a s 133 report.28 [Lake] v [Newton] [2018] NZFC 9614 [December 2018 FC judgment] at [4].[84] As already mentioned, Judge Burns directed that the application for recall bedetermined by Judge de Jong.[85] The Newtons sought the deletion of the paragraphs of the LFC's report relatingto discussions with Susan's school and with Dr Smith on the basis that they containedincorrect evidence. The Judge considered the appropriate way forward in relation tothe LFC's comments about her discussions with Dr Smith was to get the best evidenceavailable to the Court from Dr Smith. He directed that the relevant paragraphs bedeleted from the LFC's report, and that a medical report under s 133 be provided byDr Smith in relation to the children "so the Court has the best medical evidenceavailable to it on the impact of the children's ADHD and in the context of what impact(if any) it will have on the applications before the Court".29 The Judge noted thataffidavits had been filed by the Newtons from two teachers at the school, so there wasdirect evidence available to the Court. The Judge did not therefore consider that it wasnecessary for him to rule on deletion of the paragraphs in the LFC's report relating tothe school.30[86] Judge Burns then went on to consider whether the children's views should beascertained before a s 133 psychologist's report could be commissioned.He considered that the legislation did not require the children's views to be ascertainedon procedural directions, including whether a psychologist's report is obtained. He didnot accept the submission by Ms Chambers that the High Court had directed that thechildren's views must be ascertained.31 He analysed para [33] of the first High Courtjudgment to determine whether he was bound by it to seek the views of the children,saying:32(f) I have read the decision of Justice Courtney in AA vFamily Court at Auckland. I observe the paragraph [33]relied on by Lady Chambers that no Lawyer for the Childwas appointed in the review proceedings. Therefore theHigh Court accepted that the children were not parties tothe proceedings under the Care of Children Act. I alsoconsider that paragraph [33] is an additional reason29 At [6].30 At [7].31 At [11].32 At [12]–[13].added by Justice Courtney for the determination to remitthe matter back to the Family Court for reconsiderationand is not part of the ratio of the decision. I consider thatparagraph [33] can properly fall within an obiterstatement. Therefore, I do not accept the submissionmade by Lady Chambers that I am bound by thatparagraph of the judgment. I do not think the issue wasfully argued before the High Court and it could not havebeen because there was no representative appointed forthe children in the proceedings to advocate on theirbehalf as to whether the Court was making a bindingruling to apply to all Family Court proceedings where apsychologist report was being considered.(g) I also do not accept that paragraph [33] amounts to adirection to the Family Court to obtain the children'sviews.This is in the context where Ms Cobcroft had not been able to see the childrenfor a number of reasons and so she had not been able to interview them.The words themselves do not amount to a direction but an observation that itis usual to seek their views. I do not know where Justice Courtney got theinformation from that it is usual in the Family Court to seek children's viewsfor the obtaining of a psychologist report but I am not aware of this being theCourt's practice.[87] The Judge proceeded to consider whether a s 133 report should becommissioned. He considered each of the factors identified in s 133(6) in some detail.He considered the parties' wishes in relation to the report. He concluded that a s 133report was essential for the proper disposition of the case:33 I have reached the conclusion that the Court has no other choice but toobtain the expert assistance of a psychologist in this case because of thecompeting cases presented by the parties to the Court which [raise] significantand long-term psychological issues. The only person who can provide expertassistance to the Court is a registered psychologist and I am satisfied that areport is essential. [The LFC] supports the obtaining of a report.[88] The Judge directed that a s 133 report be commissioned to assess thefollowing:34(a) The children's views about having contact with their maternalgrandmother.33 At [24].34 At [26].(b) Identify what, (if any) influences/external pressures are likely to haveaffected the children's views.(c) The children's relationship with each party.(d) The effect or likely effect on the children of having or not havingcontact with their maternal grandmother at this time.(e) The advantage and disadvantages of the children of the proposedcontact options.(f) Make recommendations about what, if any, therapeutic support orintervention is required for this family.Second judicial review proceedings[89] The Newtons then filed new judicial review proceedings seeking orders settingaside the s 133 order made by Judge Burns (second judicial review proceedings).They pleaded three causes of action.[90] The first cause of action alleged that Judge Burns failed to take into accountmandatory relevant considerations set out in s 133(6) and (7). In particular, the Judgewas required to ascertain the children's wishes, and take them into account, becauseof the express direction of Courtney J to that effect in the first High Court judgmentand s 6 of COCA. The s 133 order was made without due regard to the statutorycriteria in ss 6 and 133 of COCA, art 12 of the CRC and was contrary to the expressand binding direction of Courtney J.[91] The second cause of action alleged that Judge Burns relied on an irrelevantconsideration: the November 2018 LFC report, which they claimed was ultra vires.They pleaded that this report was contrary to the practice note issued by the PrincipalFamily Court Judge in relation to the role of the LFC, guidelines for LFCs issued bythe NZLS, and the CRC.[92] The third cause of action alleged that Judge Burns breached the principles ofnatural justice by failing to deal first with the recall application of the minute issuedby Judge de Jong on the court file. They also pleaded that the failure to deal with therecall application was a breach of the obligations imposed on the Judge by s 4 ofCOCA.[93] The respondents named in the proceedings were the Family Court at Auckland,Ms von Keisenberg (the author of the November 2018 LFC report), and Ms B Lake.[94] The NZLS was granted leave to intervene in the proceedings.35 Because theFamily Court did not take an active role in the proceedings, the High Court appointedcounsel to assist the Court as contradictor in relation to the third cause of action.36Second and third High Court judgments[95] The judicial review application was allocated a one day fixture before Duffy Jon 4 December 2019. There was insufficient time to hear from all the parties on allthe issues raised in the second and third causes of action. On 19 February 2020 theJudge issued an interim judgment determining the first cause of action(second High Court judgment).37 The second High Court judgment is described inmore detail below.[96] In short, Duffy J held that the Family Court was required to proceed inaccordance with the directions given by Courtney J. It was not open to Judge Burnsto decide that it was not necessary that the views of the children be ascertained beforea s 133 report was commissioned. Nor was it open to Duffy J to reconsider thatquestion: if any party wished to challenge the decision of Courtney J, the appropriateremedy was to appeal to the Court of Appeal.[97] The order made by Judge Burns for the preparation of a s 133 report was setaside. The question whether a s 133 report should be ordered was referred back to theFamily Court for reconsideration "in accordance with the reasoning of this judgmentand the factual and legal findings in the judgment of Courtney J".38 However Duffy Jdirected that the orders and directions she made for reconsideration of whether a s 133report should be obtained should not be implemented until the outcome of the thirdcause of action was finally resolved.3935 DN v Family Court at Auckland [2019] NZHC 2028, [2019] NZFLR 150 at [20].36 DN v Family Court at Auckland [2020] NZHC 210, [2020] NZFLR 15 [second High Courtjudgment] at [20].37 Second High Court judgment, above n 36.38 At [41].39 At [42].[98] The second and third causes of action were argued at a further hearing beforeDuffy J on 7 and 8 May 2020. On 1 December 2020 Duffy J delivered a judgmentdismissing the second and third causes of action (third High Court judgment).40The third High Court judgment is also described in more detail below.[99] Following delivery of the third High Court judgment the Newtons applied fora stay of the direction given in the second High Court judgment that the Family Courtreconsider whether to order a s 133 report. The Newtons wanted to extend the interimorders made in the second High Court judgment until their appeal to this Court hadbeen determined. There was no opposition to the grant of a stay. Duffy J was satisfieda stay should be granted. She directed that the order she had made in the secondHigh Court judgment, deferring reconsideration of whether a s 133 report should beobtained, would remain in effect until the Newtons' appeal against the thirdHigh Court judgment and the Family Court's appeal against the first High Courtjudgment were determined by this Court.41First High Court judgment[100] As already mentioned, the first judicial review application came beforeCourtney J in June 2018. Ms Chambers appeared for the Newtons. The Family Courtat Auckland, which was named as the first respondent, indicated that it would abidethe decision of the Court. The second respondent, Ms B Lake, also indicated that shewould abide the decision of the Court. In order to provide a contradictor, counsel toassist the Court was appointed.42[101] The High Court had before it the audio recording of the Family Court issuesconference held on 27 November 2017, and a transcript of that conference.The High Court also, as noted above, directed that a report be obtained fromJudge de Jong for the purposes of the judicial review application. He provided hisreport in a memorandum dated 1 June 2018.40 DN v Family Court at Auckland [2020] NZHC 3165 [third High Court judgment].41 DN v Family Court at Auckland [2021] NZHC 1116 at [45] and [49].42 First High Court judgment, above n 9, at [1], n 1.[102] Courtney J began by discussing the principles relevant to a challenge to adecision on the grounds of pre-determination. She noted that pre-determination is"generally regarded as conceptually different from bias, and the fair-minded layobserver test applicable to the latter" is "inapt". However "the cases usually cited insupport of this approach involve administrative decision-makers". In cases involvingjudicial or quasi-judicial decision-makers, "the fair-minded lay observer test has beenregarded as appropriate".43[103] Courtney J considered that where the decision-maker is a judge or has aquasi-judicial function, asking whether he or she would have appeared to a fair-mindedlay observer "to have pre-determined the matter is more appropriate than inquiringwhether, as a matter of fact, that had happened".44[104] Courtney J next addressed the statutory threshold for the exercise of the s 133discretion. A psychological report may be directed "only if" the criteria specified bys 133(6) have been met. She considered that the relevant criteria were those in paras(a) and (b) of s 133(6):45(a) the court is satisfied that the information that the psychological reportwill provide is essential for the proper disposition of the application;and(b) the court is satisfied that the psychological report is the best source ofthe information, having regard to the quality, timeliness, and cost ofother sources [105] The Judge recorded that she had reviewed the transcript of the directionsconference and listened to the audio recording. The hearing took about 15 minutes.A further approximately 10 minutes was spent while the Judge prepared his minute.46The Judge described the directions conference, and the memoranda that were handedup, in some detail. She noted that there was a pause while the Judge read the43 At [2].44 At [4].45 At [5].46 At [12]. From the audio recording, to which we have also listened, it appears that the hearing tookabout 15 minutes, as Courtney J noted. There was then a pause of approximately two minuteswhile the Judge typed the brief for the psychologist. He then dictated his minute, which tookabout 5 minutes. Towards the end of dictating that brief he asked the court taker to distribute tocounsel copies of the brief, which the Judge had printed on the courtroom printer.memorandum handed up by the LFC.47 She considered it was doubtful thatJudge de Jong read Ms Chambers' memorandum, as there was no pause as there hadbeen after counsel for the child had handed up her memorandum. HoweverMs Chambers had addressed the issues in her memorandum orally.48[106] Courtney J recorded that there was "a long pause, about 10 minutes, before theJudge could be heard either reading out or dictating a minute".49 She noted that itseemed likely from the report provided by the Judge that he typed the minute himself.50[107] Courtney J said that the "Judge did not refer to the brief for the s 133 reportwriter and, unlike the minute, there was no audio of the Judge reading that out".She observed that the brief was attached to the minute and it seemed likely that it wasprovided at the same time.51 (We note that this was not in fact the case. It is apparentfrom the audio recording and from the report provided by Judge de Jong that the brieffor the psychologist was discussed with counsel, and then typed by the Judge.The brief was printed off and handed out to counsel at the hearing. The Judge did nottype his minute at the hearing. Rather, it was dictated in order to be typed upsubsequently. It appears the parties did not receive the minute until some time afterthe hearing, in December 2017.)[108] Courtney J said that two aspects of the hearing led her to the conclusion thatthe Judge had reached his decision before hearing from counsel and did not properlyconsider counsel's submissions.52[109] First, at the outset of the conference "no party was seeking a direction for as 133 report". The LFC had "merely flagged that a s 133 report should be considered".Ms B Lake had not sought a s 133 report, though her counsel expressed support for47 At [13].48 At [19].49 At [24]. The reference to a pause of about 10 minutes may be a typographical error: as notedabove, the pause was about two minutes.50 At [24].51 At [25].52 At [28].the idea orally.53 Ms Chambers, counsel for the Newtons, sought to have a s 133 reportconsidered after the LFC had spoken to the children and reported. Courtney J said:[29] Having heard (but not responded to) Ms Chambers and withouthaving heard from Ms Cobcroft at all on the issue, the Judge expressed theview that he was "very concerned about what's happening" and consideredthat "we need a s 133 report straightaway". These statements do suggest aview that had already been formed. It was only after the Judge had made thesestatements that Ms Cobcroft said, contrary to her second memorandum(but understandably, given the Judge's strong indication), that she also thoughta section 133 report should be obtained.[110] Second, "having made it clear that he intended to order a s 133 report, the Judgepaused for a short time and then gave a detailed, apparently extempore, description ofthe brief that would be required for the s 133 report". Courtney J said:54 The relatively complex language of the brief he subsequently producedclosely mirrored the oral description. I consider it more likely than not thatthe Judge had already prepared the brief and that his oral description reflectedthe brief, rather than the brief being prepared following the decision to makethe order. In other words, I am satisfied that the brief to the s 133 report writerhad already been prepared. That, in itself, does not indicate pre-determination.But coupled with the way the issue was dealt with in the course of the hearing,it would, in my view, have led a fair-minded lay observer to conclude that thiswas the case. I should add, out of caution, that this would have been myconclusion even under the higher test of whether, as a matter of fact, the issuehad been pre-determined.[111] Courtney J went on to say that a third factor provided additional support forher conclusion, as well as being the alternative ground for the application:the submission that the Judge had failed to address the relevant mandatoryconsiderations under s 133(6) and (7). Ms Chambers' submission was that until theLFC had spoken to both the children's doctor and to the children themselves, it waspremature to direct a s 133 report. Courtney J considered that Dr Smith represented asignificant, possibly even the best, source of information about the children and theircurrent state of mind, taking into account the effect of their medication and theirprogress to date.55 She said:[32] In these circumstances, it is difficult to see how the Court could havebeen satisfied that a psychological report was essential for the properdisposition of the application without knowing what Dr Smith had to say.53 At [28].54 At [30].55 At [31].For example, Dr Smith's input might indicate that it is not in the children'sbest interests to be interviewed at this stage and that further time is desirableor that the brief for the psychological report writer should be different to thatdirected by the Judge, or it might provide sufficient information to concludethat a report is not necessary. Either way, an important source of informationexisted and, until the Judge knew more about the information that Dr Smithhad to offer, the statutory threshold was not met.[33] Nor have the views of the children been taken into account in makingthe decision that a s 133 report was required, as required by s 133(7).The children are of an age where it would be usual to seek their views andincorporate those views into the decision-making process. That is a task thatfell to lawyer for the children and could be obtained prior to a decision beingmade about a s 133 report.[112] The application for judicial review was allowed. The order that a s 133 reportbe obtained was set aside, and the matter remitted to the Family Court for furtherconsideration.56Second High Court judgment[113] The second High Court judgment determined the first cause of action in theNewtons' second judicial review application: the challenge to the second s 133 ordermade by Judge Burns on the grounds that Judge Burns failed to take into accountmandatory relevant considerations in s 133(6) and (7), in particular the views of thechildren. In doing so, the Newtons pleaded, he acted contrary to the express andbinding direction of Courtney J.[114] As Duffy J noted, a distinguishing feature of the judicial review applicationbefore her was "that Judge Burns' decision to order a s 133 report was made incircumstances where Courtney J in [the High Court] had already made factual andlegal findings on the earlier order of Judge de Jong to obtain a s 133 report"."The findings Courtney J made on the pre-determination grounds of review relatedsolely to Judge de Jong's decision". But the findings Courtney J made on thealternative grounds of review, which related to relevant considerations under s 133(6)and (7), were relevant to how the reconsideration in the Family Court was to beundertaken.5756 At [34].57 Second High Court judgment, above n 36, at [21].[115] Duffy J summarised the relevant findings as follows:[22] Courtney J had found that in the circumstances of these children inthis case, Judge de Jong could not be satisfied a s 133 report was essentialwithout first knowing what Dr [Smith] had to say about obtaining a s 133report. Until his views were known the statutory threshold in s 133(6) wasnot met. Courtney J also found that in this case s 133(7) required the lawyerfor the children to obtain the children's views before a s 133 report wasobtained [116] There was nothing to suggest, Duffy J said, that there had been "any materialchange in the children's circumstances following the delivery of Courtney J'sjudgment". No one who was a party to the judicial review before Courtney J hadappealed against her judgment. So the first question was the extent to which JudgeBurns, as the Family Court Judge who was reconsidering whether to order a s 133report, was bound to follow the directions and reasoning of Courtney J.58[117] As Duffy J explained, where a decision is remitted to the originaldecision-maker the matter must be considered de novo, as if the first decision had notbeen made. However in undertaking this reconsideration the decision-maker musthave regard to the reviewing court's reasons and to any directions provided by thatcourt.59 The decision-maker must adhere to the reasoning of the court that remittedthe decision.60[118] It followed, Duffy J said:61 that Judge Burns was required to act consistently with the reasoning ofCourtney J and in accordance with her findings on fact and law. It was notopen to Judge Burns to disregard the reasoning of Courtney J on the need toobtain the views of the children and Dr [Smith] before a s 133 report wasordered.Duffy J did not accept the view expressed by Judge Burns that the reasoning ofCourtney J was merely obiter. It was necessary to dispose of the second cause ofaction. It formed part of the ratio decidendi of Courtney J's judgment.58 At [23].59 At [24], citing the Judicial Review Procedure Act 2016, s 17(6)(c).60 At [24].61 At [26].The Family Court was bound "by the findings of both fact and law on which thatreasoning rest[ed]".62[119] The respondents argued that the doctrine of precedent must "[yield] to thewelfare and best interests of the children". Section 4 of COCA provides that theirwelfare and best interests are the paramount consideration. Thus, they argued,"Judge Burns was free to apply his own interpretation of s 133".63 Duffy J did notaccept that submission. She considered that s 4 could not: 64 trump fundamental constitutional principles relevant to judicial process.The doctrine of precedent is one such principle Adherence to it is one ofthe means by which the rule of law is observed. Conversely, when a court oflesser jurisdiction ignores the binding decisions of a senior court this threatensadherence to the rule of law.[120] She added that the "right of access to [the High Court] to engage" thesupervisory jurisdiction of judicial review of the Family Court reflects "anotherfundamental constitutional principle. Where a decision-maker under review ignoresthe decision of [the High Court] in exercising its supervisory function that alsothreatens the rule of law".65[121] Duffy J considered that these fundamental principles trumped s 4 of COCA or,put another way, adherence to fundamental constitutional principles would always besomething that is in the children's best interests. For the Family Court to do otherwisecan never be in the best interests of children. So, Duffy J said, there is no conflictbetween s 4 and the requirement for Judge Burns to comply with the findings of factand law made by Courtney J.66[122] Duffy J acknowledged that leave had been granted to the NZLS to interveneand be heard on the more general question of "the appropriateness of seeking a child'sview as to whether a s 133 report is necessary and on the practical implications for therole and practice of lawyer for the child if that is required".67 However the conclusion62 At [26].63 At [27].64 At [28] (footnotes omitted).65 At [29].66 At [29].67 At [31], citing DN v Family Court at Auckland, above n 35, at [7].Duffy J had reached on the first cause of action meant she was precluded fromconsidering whether it is appropriate for children's views to be obtained before a s 133report is ordered. Duffy J could not give what would amount to no more than generaldeclarations on general questions of law, as the issue of whether the children's viewsshould be obtained before directing a s 133 report in the present proceeding hadalready been decided. Further, Duffy J said, insofar as her views on this legal questionmight depart from those of Courtney J it would be wrong for her "to express them, andso by a side wind contradict her judgment. Absent appeal, Courtney J's decision muststand in relation to the parties."68 An appeal from Courtney J's decision was theappropriate remedy for any party who wanted to question that judgment.69 Althoughthe Family Court had not been an active participant in the judicial review beforeCourtney J, it was possible for the Court to seek to pursue an appeal through theintervention of the Attorney-General. There had been an available remedy for eitherthe grandmother or the Family Court, had they wished to challenge the judgment ofCourtney J.70[123] Duffy J was satisfied that the decision of Judge Burns to order a s 133 reportshould be set aside. The Family Court would need to reconsider whether to make as 133 order in accordance with the reasons set out in the second High Court judgmentand the factual and legal findings made by Courtney J.71 Thus before any s 133 orderwas made, the Family Court judge who considered the matter was required to: 72(a) be provided with an opinion from Dr [Smith] on the advisability ofobtaining a s 133 report on the children; and(b) be provided by the [LFC] with a report, following interview of thechildren, that informs the Family Court Judge of the children's viewson whether a s 133 report on them should be obtained.[124] We pause to note that there was no appeal by any party from the secondHigh Court judgment. That is not surprising. As Duffy J explained, there was noproper basis on which the Family Court could depart from the reasoning of theHigh Court in the first High Court judgment and adopt an approach inconsistent with68 At [31].69 At [32].70 At [33].71 At [34].72 At [41].the findings in that judgment. It did not matter that Judge Burns had a different viewabout what s 133 required: the Family Court was not free to disregard the High Courtjudgment.[125] We will however need to revisit the directions given to the Family Court inrelation to reconsideration of whether a s 133 report should be obtained, in light of ouranswers to the issues before this Court.Third High Court judgment[126] The third High Court judgment determined the second and third causes ofaction in the second judicial review proceeding.73Second cause of action: LFC report ultra vires[127] In the second cause of action the Newtons challenged the report of the LFCand the s 133 order made by Judge Burns. They contended that Judge Burns' decisionwas "made in error of law" because it was made in reliance on the report of the LFC,which they alleged was ultra vires.74[128] The practice note issued by the Principal Family Court Judge provides that areport from the LFC "should be short, factual and informative", "should be couchedin neutral terms and should not introduce any material that ought to come to the court'sknowledge only by way of evidence".75 Here, the applicants contended, the report ofthe LFC on which Judge Burns relied recorded "ultra vires" hearsay evidence andopinions by the LFC. It contained hearsay evidence from teachers at the children'sschool and from Dr Smith.76 It expressed the view that a s 133 report should beordered without first obtaining the views of the children, despite the findings made byCourtney J in the first High Court judgment.7773 Third High Court judgment, above n 40, at [1].74 At [2].75 At [2], referring to Family Court Practice Note: Lawyer for the Child — Selection, Appointmentand other matters [2020] NZFC 3346.76 At [3].77 At [6].[129] The applicants alleged that Judge Burns directly relied upon the LFC's report.Reliance on an ultra vires report constituted an error of law on his part.78The applicants sought: 79 a declaration that the actions of the [LFC] were ultra vires; an orderremoving or in the alternative redacting the report of the [LFC] from theFamily Court file; and an order setting aside the decision of Judge Burns.[130] Duffy J was:80 satisfied that insofar as the [LFC] made submissions in her report to theeffect that Judge Burns was not bound by Courtney J's findings and was freeto decide the question of a s 133 report afresh, those submissions were wrongin law.That was the issue that Duffy J had decided in the second High Court judgment.It "was not open to the [LFC] to contend before Judge Burns that it was open to himto order a s 133 report without first obtaining and paying regard to the wishes of thechildren".81[131] Thus, Duffy J said, "to the extent the [LFC's] submissions were adopted byJudge Burns they caused him to go wrong in law". Errors of law on the part of theLFC "either caused or contributed to Judge Burns erring in law". But that did notmean "that the legally incorrect submissions or the conduct of [LFC] in making thosesubmissions were amenable to judicial review".82[132] The role of LFC involves a statutory function, which Duffy J considered mayin principle render it amenable to judicial review.83 When the LFC performs theirstatutory function under s 9B of the Family Court Act, "there may be occasions whenthis performance has a direct effect that renders any unlawful performance amenableto review".8478 At [7].79 At [8].80 At [10].81 At [10].82 At [10].83 At [12].84 At [13].[133] However, Duffy J held, the presentation of a report to the Family Court has nodirect effect on the child or anyone else. It is open to the Family Court Judge whoreceives the report to determine to what extent it is persuasive:85 When a report of [an LFC] misstates or misapplies the law, as happened inthe present case, the Family Court Judge will either recognise the errors andput those aspects of the report to the side or the Judge will fail to realise thereare errors, which is what happened here. In the latter case the erroneousinfluence of the report will leave the judgment vulnerable to being set asideon either appeal or judicial review, the latter of which happened here. In suchcircumstances I consider the correct approach is for this Court to grant reliefin the form of setting aside the judgment rather than by a declaration the reportof the [LFC] is ultra vires because it contains errors of law, which isessentially the relief the applicants seek. This is another reason why I considerthe applicants cannot obtain a declaration that the report of the [LFC] is ultravires.[134] Duffy J also did not accept the argument that the report of the LFC amountedto an irrelevant consideration that Judge Burns should not have taken into account.In principle, the report of an LFC will be a relevant consideration which aFamily Court judge is obliged to consider. But that does not mean the report must befollowed or applied. All that is required is that it is properly considered. Duffy J didnot consider that the general character of the report — a relevant consideration for theJudge — could "be transformed into being an irrelevant consideration simply by thepoor quality of the report's content".86[135] Thus the applicants could not obtain relief that directly affects the report of theLFC. The second cause of action had not been made out.Third cause of action: breach of natural justice[136] Duffy J then went on to consider the third cause of action. The pleading of thiscause of action had been amended following the recall decision by Judge de Jong.As amended, the Newtons' pleading alleged that the re-released minute and the recalldecision "did not go far enough to address their concerns about the presence ofinaccurate and prejudicial material on the Family Court file".87 They alleged that theOctober 2018 minute of Judge de Jong, the re-released minute and the recall decision85 At [13] (footnote omitted).86 At [14].87 At [22].(the challenged documents) should also be removed from the Family Court file.There was a risk, they claimed, that if the challenged documents remained on the filethey may be read by future judges in the Family Court proceeding, creating a risk of areasonable appearance of bias on the part of those judges and depriving the Newtonsof their right to a fair hearing.88[137] Duffy J noted that the third ground of review was forward-looking: the claimwas that for so long as the challenged documents remained on the court file, futureFamily Court judges "who hear the proceeding would do so under a cloak of apparentbias". The Newtons claimed that a fair-minded lay observer might reasonablyapprehend, for so long as those documents remained available on the court file, thatthere was a real possibility that future judges might not bring an impartial mind to thequestion each was required to decide. Hence the relief the Newtons sought in the formof an order requiring the removal of the challenged documents from the court file.89[138] Duffy J was satisfied that the challenged documents and the conduct ofJudge de Jong would lead a fair-minded lay observer to conclude apparent bias waspresent. His conduct was "not typical of first instance judges who find their decisionsoverturned on appeal or set aside" in judicial review proceedings. To this extent,Duffy J said, she could understand the concerns of the Newtons. HoweverJudge de Jong had disqualified himself from making any further determinations on thequestion of whether to order a s 133 report, so any issue regarding apparent bias onhis part was now of historic interest only. Any apparent bias on the part ofJudge de Jong did not mean future judges would "follow in his footsteps".90[139] Duffy J did not consider that the presence of the challenged documents on thecourt file could found concerns about apparent bias on the part of future Family Courtjudges dealing with the proceeding. A fair-minded lay observer would not considerthat there was a logical connection between the presence of those documents on thecourt file and the risk of apparent bias on the part of future judges, for five mainreasons.9188 At [23].89 At [39].90 At [46].91 At [51].[140] First, the challenged documents would be viewed by the fair-minded layobserver in their overall context, including the decisions of the High Court in the twojudicial review proceedings: 92Those decisions clearly indicated the factual and legal findings made by[the High Court], and how future Family Court judges should approach thequestion of whether the children's views should be sought before a decision ismade on whether to order further psychologists' reports [141] Second, Duffy J said:93the fair-minded lay observer would be aware of the hierarchy of [courts] andthe general expectations as to how first instance judges will respond whentheir decisions are set aside by senior courts These events are not cause forjudicial comment by the first instance judge. The fair-minded lay observer'sawareness of these expectations would logically lead to [them] placing agreater emphasis on the directions of [the High Court] in the two judicialreview decisions rather than what had been outlined in the [challenged]documents [142] In particular, regarding the decision still to be made on ordering a s 133 report,the fair-minded lay observer would expect that a future judge would approach thematter with an open mind and on the basis of the decisions of the High Court in thejudicial review proceedings.94[143] Third, Duffy J held: 95the fair-minded lay observer would understand the expectations relating to theconduct of [judges] (independence in decision-making, observance of theirjudicial oath and their obligations to sit on any case to which they are allocatedunless there is reason for recusal). Those expectations would outweigh anyinfluence the challenged documents might have on future [judges] involved inthe [proceedings].[144] Fourth, she said: 96the fair-minded lay observer would be reasonably informed of the workingsof the judicial system and therefore would understand that a future [judge]who is responsible for dealing with a matter in the Family Court proceedingwill concentrate on reading the relevant material provided by the parties andthe [LFC], as well as hearing from them in [court], rather than reviewing92 At [52].93 At [53].94 At [53].95 At [54] (footnote omitted).96 At [55] (footnote omitted).historic material on the [court] file the views of judges who have beenengaged in earlier aspects of a proceeding are not typically relevant tosubsequent steps in that proceeding. Judges are obliged to reach their ownviews on the facts and law relevant to the issues to be determined.The parties are entitled to have a [judge] assess their respective cases basedon the views that [judge] has formed, and not by reference to the thoughts ofother judges who may have had some earlier involvement in their cases.[145] The fair-minded lay observer would, Duffy J said, be expected to be aware ofthese matters.[146] Finally, Duffy J considered that a fair-minded lay observer would concludethere is no useful purpose in a future judge reading the challenged documents andtherefore there would be little, if any, expectation of this happening. The documentswould not assist the judge who comes to make the s 133 determination in the future.97[147] Thus, Duffy J found, the test for apparent bias was not satisfied. The thirdcause of action had not been made out.98 There was no basis for Duffy J to order thechallenged documents to be removed from the court file.99[148] Duffy J went on to note that there was a separate question as to whether theHigh Court could order the removal of a court document from a court file."The Family Court is a court of record and, as such, it is required to keep a permanentrecord of all essential steps in proceedings". This is a common law obligation that isreflected in s 17 of the Public Records Act 2005. It was unclear to Duffy J whetherthe High Court could exercise powers that intrude on the management of Family Courtfiles. However it was not necessary for her to resolve that issue.100[149] The second and third causes of action were therefore dismissed.10197 At [56].98 At [57].99 At [58].100 At [58].101 At [59]–[60].The appeals before this CourtThe Newtons' appeal against the third High Court judgment[150] In January 2021 the Newtons filed an appeal to this Court against the thirdHigh Court judgment. Their grounds of appeal included that:(a) Duffy J erred in failing to separately consider the relief they sought inrelation to the report of the LFC, declaring that it was ultra vires andrequiring it to be removed from the court file or in the alternativeredacted; and(b) Duffy J erred in declining to order that the challenged documents beremoved from the Family Court file. The third cause of action was notlimited to apparent bias. Duffy J erred in finding there was no usefulpurpose in a future judge reading those documents and that there wouldbe little if any expectation by a fair-minded lay observer of thishappening.[151] The Newtons sought a judgment from this Court:(a) setting aside the third High Court judgment;(b) declaring the report of the LFC filed on 5 November 2018 ultra vires;(c) removing, or in the alternative, redacting, that report from theFamily Court proceedings file; and(d) directing the Family Court to remove from its file the challengeddocuments.[152] Counsel for the LFC gave notice of intention to support the third High Courtjudgment on other grounds. Those additional grounds were that:(a) the role of LFC is not amenable to judicial review; and(b) the LFC at all times performed her role appropriately and within thescope of her statutory role.[153] Leave was granted to the NZLS to intervene in this appeal.102Family Court appeal from first High Court judgment[154] After the Newtons filed their appeal from the third High Court judgment, theFamily Court applied for an extension of time to appeal against the first High Courtjudgment. This Court granted an extension of time, and directed that the appeal beheard together with the appeal against the third High Court judgment.103 Leave wasgranted to the Attorney-General to intervene in the appeal.104 It is not normallyappropriate for a lower court to play an active role in judicial review proceedingsbefore the High Court or on appeal. This Court considered that it would be moreappropriate for the Attorney-General to take responsibility for prosecuting theappeal.105[155] The grounds of appeal against the first High Court judgment included that theHigh Court had erred in:(a) finding that s 133 of COCA requires a child's views to be taken intoaccount when deciding whether a psychological report is required;(b) failing to take into consideration the role of the LFC, and specificallythe discretion to be exercised by LFC as to whether a child's viewsmight be obtained prior to a decision being made about a s 133psychological report; and102 DN v Family Court at Auckland CA19/2021, 22 April 2021 (Minute No 2 of Goddard J).103 Family Court v AA [2021] NZCA 189 at [29]–[30].104 At [31].105 At [22].(c) finding that Judge de Jong had pre-determined the requirement for as 133 psychological report.[156] The grounds of appeal also included a claim that the use of the Judicial ReviewProcedure Act 2016 to challenge interlocutory rulings of the Family Court inproceedings under COCA is tantamount to an abuse of the processes of the High Court.[157] The Newtons gave notice of their intention to support the first High Courtjudgment on other grounds. Those other grounds were, in summary, that COCArequires that the views of the children who are the subject of proceedings must beascertained and considered before a s 133 report is obtained.[158] Leave was granted to the NZLS to intervene in this appeal in relation to theoperation of s 133 of COCA, and whether the views of the children should have beensought before directing a psychological report under s 133.106[159] This Court appointed Mr Cooke as LFC in connection with both appeals.He had been appointed as the LFC in the Family Court, following the appointment ofMs von Keisenberg as a Family Court judge.Issues on appeal[160] The Attorney-General and the Newtons identified the following issues thatarise in the appeal from the first High Court judgment:(a) whether Courtney J erred in law in finding that a child's views must betaken into account under s 133(7) of COCA;(b) whether s 6 of COCA requires the Family Court to take a child's viewsinto account before ordering a s 133 report;(c) whether s 133(6) requires the Family Court to take a child's views intoaccount before ordering a s 133 report;106 At [26].(d) whether in finding that the Family Court must take a child's views intoaccount before ordering a s 133 report, Courtney J erred in law byfailing to take into consideration that the LFC has a discretion as towhether or not to ascertain a child's views;(e) whether the use of the Judicial Review Procedure Act to challengeinterlocutory rulings of the Family Court in COCA proceedings is anabuse of the process of the High Court;(f) whether Courtney J erred in law in finding that Judge de Jong hadpre-determined the requirement for a s 133 report; and(g) whether Courtney J erred in law in disregarding a report filed byJudge de Jong in which he explained how he prepared the brief, and bydisregarding the function of the court in preparing a brief by referenceto the definition of psychological report in s 133(1), and s 133(5)(b)(ii)of COCA.[161] We consider that the first four of these issues can be grouped together. They areall aspects of the question whether a child's views must be taken into account by theFamily Court before ordering a s 133 report.[162] The sixth and seventh issues can also be addressed together. We will addressthe relevance of the report prepared by Judge de Jong when we consider whetherCourtney J erred in finding that Judge de Jong had pre-determined his decision inrelation to the s 133 report.[163] The appeal from the third High Court judgment raises issues in relation to:(a) the extent to which judicial review may be sought in respect of a reportprepared by the LFC in Family Court proceedings; and(b) the circumstances (if any) in which the High Court can direct thatdocuments be removed from a Family Court file.[164] We will address the issues raised by the two appeals under five headings:(a) the appropriateness of judicial review of s 133 orders;(b) ascertaining children's views in relation to s 133 orders;(c) pre-determination;(d) reviewability of an LFC report; and(e) removal of documents from a Family Court file.[165] Before we do so, however, we will summarise the relevant evidence, and inparticular the expert evidence, that was before the High Court and this Court.The evidence before the High Court and this Court[166] The Newtons filed affidavits in support of each of their judicial reviewapplications, setting out the background to the Family Court proceedings andexplaining their concerns in relation to the making of the s 133 orders.[167] As already mentioned, in the first judicial review proceeding the Court hadbefore it by way of evidence the transcript of the hearing before Judge de Jong on27 November 2017, the audio recording of that conference, and the report fromJudge de Jong to the High Court dated 1 June 2018.[168] In the second judicial review proceeding the High Court also had before it areport from the Children's Commissioner, and affidavits filed by the NZLS fromProfessor Seymour, an experienced clinical psychologist.Report from Children's Commissioner[169] The Children's Commissioner provided a report to the High Court unders 12(1)(g)(ii) of the Children's Commissioner Act 2003. The report was provided atthe request of Ms Chambers. Ms Crawshaw QC, counsel for the LFC, endorsed therequest for a report.[170] The report, which was provided in October 2019, addressed the question:Should children be consulted and have an opportunity to express their view asto whether a s133 psychologist's report is essential in proceedings under theCare of Children Act 2004?[171] The Commissioner emphasised in his report that children's participation indecisions that affect them is a fundamental right set out in the CRC. In his view, thatright is not widely recognised or sufficiently valued in New Zealand.[172] The Commissioner said he considers that courts should take a child-centredand rights-based approach to decision making. That would go beyond simply givingchildren the opportunity to put forward their views, to actively supporting themthrough the process in a way that is responsive to their age and stage of development,cultural background, abilities and needs. He emphasised that his opinion is that it iscritical that children's views are sought, listened to and considered in all decisionsaffecting them, including procedural issues. "They are after all, experts in their ownlives".[173] The Commissioner summarised his views in relation to the participation ofchildren in the ordering of a s 133 report as follows:31. A child-centred and rights-based approach to decision making aboutthe ordering of a s133 psychological report could look like this:a) The Lawyer for Child checks to see if the children involvedhave previously expressed views that are relevant to theirparticipation in a psychology report. Relevant information onprior views, such as if the children have refused to participatepreviously or if the children have found involvement in otherreports traumatic, should be shared with the Judge forconsideration. This information is important but should notpreclude the child from being asked their views at the presentstage.b) The parents and/or guardians of the children and/or theLawyer for Child and/or an appropriate person, guides thechildren through the judicial process including explaining, ina way that is understandable to the children, what a s133psychological report is, why it is used and how it is usuallyconducted (ie where it takes place, duration, format, likelyquestions to be asked).c) Children then have the time and space to express their viewsabout participating in the s133 psychological report process ifthey wish to. These views should be listened to, recorded andshared, if the children want them to be, with the Judge forconsideration. Children have the right to not share their viewson this matter and should be supported to understand theprocess so that they can make that decision and share theirviews freely. The children should be supported to speakdirectly with the Judge to share their views if they wish.d) The Judge considers the children's views alongside otherevidence and information in making a decision in thechildren's best interests about the essentiality of the orderingof a s133 psychological report.e) The Lawyer for Child then reports back to the children abouthow their views were considered in the decision-makingprocess and the nature of the Judge's decision.Evidence of Professor Seymour[174] Professor Seymour is an emeritus professor at the University of Auckland.He has extensive experience both in practice as a clinical psychologist and in teachingand clinical supervision of students training as clinical psychologists. He haspublished widely in the field. Professor Seymour was asked to provide expertevidence from a psychologist's perspective on the appropriateness (or otherwise) ofseeking a child's view as to whether a s 133 report is necessary in any circumstances.[175] Professor Seymour described the standard brief for a s 133 report, and the wayin which a psychologist will go about preparing their report in answer to such a briefby drawing on multiple sources of evidence:30. The [legislation] defines a 'standard brief' for psychologicalreports in the following terms:(a) how current arrangements for the child are working for thechild;(b) the child's relationship with each party, including ifappropriate, the child's attachment to each party;(c) the child's relationship with other significant person's in thechild's life;(d) the effect or likely effect on the child of each party's parentingskills;(e) the effect or likely effect on the child of the parties' ability orotherwise to co-operate in the parenting of the child;(f) the advantages and disadvantages for the child of the optionsfor the care of the child;(g) any matter that the court specifies under subsection (5)(b)(ii).31. Frequently added to the standard brief is the direction to ascertain andcomment on the views of the child in relation to care arrangements.This typically includes investigation of the reasons for the particularviews expressed by the child, such as parent pressure.32. Psychological reports rely on multiple sources of evidence and thetriangulation of this data. Typically the psychologist's report will becompiled from interviews with the children who are the subject of thereport, interviews with parents/caregivers, observation of interactionbetween parent/caregivers and children, interviews with collateralparties such as extended family members, teachers, otherprofessionals involved with the children, and consideration of writtendocuments such as previous psychologist's reports, previousjudgments, reports of lawyer for child, and affidavits produced by theparties.33. Assessing concerns about the safety of a child requires considerationof parenting skills and behaviour. Affidavit evidence and interviewswith parties may raise issues of child safety because of parentalhistories of violence, substance abuse, or mental health difficulties, allof which could pose a risk to a child, depending on their context,recency and severity.34. Issues such as a child's attachment to a parent and parents' and othercaregivers' parenting skills are now part of the standard brief.The parents' history in their own family of origin is often relevant tounderstanding attachment issues in relation to their own children.[176] The affidavit identified some of the reasons for differences in content betweenreports prepared by the LFC and a psychologist:40. Other differences between lawyer for child's and psychologist'sreports may occur as a consequence of the wider brief that is typicalin directions given to psychologists. The report of lawyer for child istypically a direct representation of the child's statements, in themanner of taking instructions from a client. The assessment of achild's views in a psychologists' report may include direct verbatimreport of the children's statements, but also include detailedconsideration of the weight to be given to these views as aconsequence of factors such as attachment relationships, any historyof child maltreatment, disruption to living arrangements, exposure toparental conflict, and direct parent influence in the form of coachingand indirect influence in the form of a lack of support for the child'srelationship with the other parent.[177] Professor Seymour described psychologists' practice in relation to theassessment of children's views as follows:41. As discussed already, children have a legal right to participate indecisions affecting them and for their views to be considered.Furthermore, a child may actually want to make their views known.It is also recognised that children have the right not to express views.42. It is typical of psychologists' practice that children are not directlyasked for their wishes, preferences or views, but rather, are engagedin an open conversation that elicits such information. Some childrenmay spontaneously express their views. The guidelines forpsychologists includes the following statement: "Do not ask childrenof any age directly for their preferences or wishes in respect of livingarrangements. Instead, get them talking to you, and their wishes andpreferences will naturally be discussed." Children may also provideinformation indirectly and non-verbally, for example, by exhibitingdistressed behaviour in relation to certain matters.43. Children's views are considered within the broader context of theirmaturity. A child's expressed view may reflect poor understanding ofissues and may be based on insufficient information.44. Children's views are also subject to external influence. Parentalinfluence is particularly relevant in the circumstances of a child beingexposed to parental conflict and where there are abuse allegations.Children are vulnerable to parents' manipulation and may fear furtherexposure to conflict and consequences from their taking part ininterviews.45. Psychologists assist the child to be at ease. Psychologists conduct theinterview in such a way as to minimise a potential impact on a childthat burdens them with a sense of responsibility for decision-makingor that puts them at emotional risk. This includes consideration of theinterview setting. The neutrality of venue and lack of physicalproximity to parents/caregivers may be relevant to what children maydecide to divulge to an interviewer. Children are not interviewed inthe presence of parents, caregivers, or siblings. Similarly, interviewsshould not take place where adults can overhear children, or the childmay think that adults can overhear them. Schools are consideredappropriate settings in which to interview children due to being aneutral but familiar setting away from parental presence.(Footnote omitted).[178] Professor Seymour explained that as a matter of professional ethics apsychologist is required to obtain informed consent from a child:47. In keeping with the principles of informed consent, children aretypically informed in appropriate language that a report will beprovided to the court, and that lawyers and their parents may see this.That is, children are not given an impression that what they tell thepsychologist will be kept secret. This is set out in the psychologists'guidelines as follows: "Principles of informed consent require that thechild be explained your role, and who will get to read your report inage-appropriate language. Encourage the child to expresshimself/herself freely but also inform them that they should not feelany pressure to answer questions that he/she might not want to or beable to answer."(Footnote omitted)[179] Professor Seymour said that he was not aware of any instance other than thepresent case where the question about whether or not there should be a psychologist'sreport being put to children had been raised. He considered that to decline a s 133report on the basis of a child's objection would impede the accumulation of evidencerequired for appropriate decision making. Most often in the Family Court contextchildren's views are ascertained in relation to their care arrangements, rather thanaspects of the court's processes such as the involvement of experts.[180] Professor Seymour's conclusion was that asking children about participationin a s 133 report is both unnecessary and inappropriate:59. The factors that are commonly taken into consideration when decidingwhether to directly ascertain children's views about their carearrangements include:(a) the child's age and/or cognitive development which influencetheir capacity to understand and communicate;(b) the child's willingness to have such involvement;(c) the child's exposure to conflict such that the views theyexpress are subject to parental pressure thereby exposingthem to the risk of further emotional harm.60. With respect to the ability to understand and communicate, it isunlikely that a younger child has the capacity to understand what as 133 report entails, and even an older child may struggle tocomprehend its purpose and process. A full explanation of the processof a s 133 report is most appropriately provided by the psychologist.61. With respect to children's willingness to have involvement in a s 133report it is relevant to note that psychologists are obliged to gaininformed consent to any interviews with children. It is at this pointthat the extent of a child's involvement in the process is mostappropriately managed. In this process of engagement children's bestinterests are uppermost. Psychologists are skilled in conductinginterviews with children, they are sensitive to the need to protectchildren from any further harm, and they use their discretion in thequestions they ask and how they report the outcomes of their contactwith the children.62. With respect to children's exposure to conflict, it is relevant to observethat exposure to parental conflict is one of the major influences onchildren's post separation adjustment; perhaps the most relevantfactor. Family Court cases for which a s 133 report is beingconsidered are invariably those where there is a high, if not extreme,level of conflict. In the circumstances of there being high conflict,children and young people are best protected from the conflict in sofar as possible. Seeking their views as to how a court case is to bemanaged – as would be the case when they are asked to express theirviews about a s 133 report – risks drawing them further into parentalconflict. The consequences of this would be to place them at evengreater jeopardy of harm. For example, a parent may attempt toinfluence their views on this matter, as they may have done on issuesof care arrangements and feelings for the other parent. Or, havingexpressed approval of a psychologist's involvement, the child oryoung person may feel responsible or to blame for the outcome of thatreport and/or the eventual Court decision.63. Accordingly, it is my opinion that asking children about participationin a s 133 report is both unnecessary and inappropriate.(Footnote omitted).[181] After he had provided his first affidavit, Professor Seymour was sent a copy ofthe Children's Commissioner report referred to above. Having read that report, heprovided supplementary comments including the following:5. It is in this regard that I consider that participation of children in thedecision about whether to obtain a s133 report is inappropriate.My opinion rests in large part on the reality that s133 reports aresought for a small minority of the total applications before theFamily Court that are characterised by high levels of inter-parentconflict and typically contain allegations concerning child safety as aresult of child abuse and/or significantly impaired parenting ability.6. To require, or even to invite, children's participation on whether toobtain a s 133 report runs the strong risk of further exposure toconflict, to the detriment of their welfare. This is because a parentwho considers they may be disadvantaged by a s 133 report may seekto influence a child against supporting a report whereas the otherparent may seek to encourage the child to support a report.Furthermore, such discussion about the report may also heighten achild's sense of responsibility for the outcomes that result fromsubsequent court proceedings.9. A consequence that appears not to have been considered in theCommissioner's recommended steps arises where the child is askedabout participation in a s133 report and adopts an opposing positiononly to find at a later date that the report is going ahead anyway.This is likely to lead to the child feeling their opinion did not matter.It may also have consequences for their effective engagement with theprocess once they do meet with the psychologist.10. With respect to broader welfare considerations, the Family Courtrequires access to the best information about the child in order to makethe most appropriate decisions for their future care. This isparticularly the case with the subset of cases before the court for whicha judge is likely to consider there is need for a specialist report.12. After consideration of the Commissioner's report, I remain of theview that a full explanation of the process of a s133 report is mostappropriately provided by the psychologist, and that informed consentto participate is most appropriately obtained by the psychologist atfirst meeting with the child (see my previous paragraphs 62 and 63).13. Accordingly, it remains my opinion that asking children aboutparticipation in a s 133 report is both unnecessary and inappropriate.Joint memorandum on Family Court practice[182] The Family Court applied for leave to adduce further evidence on appeal inrelation to current practice regarding obtaining children's views prior tocommissioning a s 133 report. That application was opposed. The issue wasultimately resolved by the parties agreeing to provide, by way of memorandum ofcounsel, certain background information. The memorandum of counsel records that:Since the implementation of the Care of Children Act 2004 (COCA), s 6(2)COCA has almost invariably been interpreted as meaning that children'sviews are ascertained in relation to matters such as who they should live withor what school they should attend. Children's views about whether a specialistreport should be directed have not in practice generally been obtained.Lawyer for the child is always appointed in COCA proceedings where aspecialist report is sought. This appointment is made pursuant to s 7 of theCOCA and s 9B Family Court Act 1980. The role requires the lawyer to act inthe proceedings in a way that the lawyer considers promotes the welfare andbest interests of the child or young person. Each child is an individual.In accordance with s 4 of COCA, the consideration of the child's welfare andbest interests must be tailored to their "particular circumstances". Lawyer forchild is required to meet with the children they represent and as a matter ofpractice do so.[183] The memorandum sets out background information provided by thePrincipal Family Court Judge in relation to the work of the Family Court.Approximately 60,000 applications are filed each year. At any given time, there areapproximately 28,000 applications on hand. Proceedings under COCA constitute theCourt's main area of work: some 53.2 per cent of the total Family Court case load andsome 71.5 per cent of the total defended case load. In the Auckland metropolitanregion, the time frame from when the Court directs a s 133 psychological report to thetime the report is received by the Court is about 12 months. A case is then set downfor hearing, with a further six months' delay. So on average 18 months passes fromthe time a judge determines the report is essential to the date of determination of therelevant application.[184] The memorandum provides helpful background in relation to the way in whichs 133 orders are usually considered and made:5. The decision whether to direct a report pursuant to s 133 is usuallymade at a directions conference under r 416Z of the Family CourtRules 2002. The judge has a wide discretion to make any orders anddirections set out in r 175D. The purpose of the directions conferenceis to enable the judge to make the orders and directions necessary to"ensure that the hearing takes place as early as possible and willenable the determination of the issues in dispute between the parties".6. Each directions conference is scheduled for a 15-minute duration.Judges can preside over up to 21 conferences per day.7. The Principal Family Court Judge has indicated that if counsel,including lawyer for child, seek a direction for a s 133 psychologicalreport, they do so either in a memorandum or orally. Sometimescounsel, including lawyer for child, are aware before a directionsconference that submissions will be required on the issue of a s 133report, and sometimes they are not. Lawyer for child's submissionsand/or recommendations hold significant weight with the Court, as acentral part of their role is to advocate independently for the child'sbest interest and welfare.8. In ordering a psychological report, Family Court judges use what isknown as a "standard brief", which sets out those matters that may beincluded in the psychological report under s 133(1). The judgescustomise this brief as appropriate depending on the requirements ofthe particular case."Evidence" on interpretation of COCA[185] In the second judicial review proceeding the Newtons also filed an affidavit ofProfessor Mark Henaghan, an academic lawyer specialising in family law. In thataffidavit Professor Henaghan states that he knows the wording of COCA and thevarious interpretations of key sections, and can offer an objective opinion on how itshould be interpreted when it comes to children's right to express their views.Professor Henaghan records that he was asked to give expert evidence on the questionof whether or not it is appropriate to seek a child's view as to whether a s 133 reportis essential in proceedings under COCA. Professor Henaghan's affidavit then goes onto analyse COCA, and express his views on its interpretation.[186] It is elementary that the purpose of evidence is to establish facts relevant to theproceeding before a court. As s 25(1) of the Evidence Act 2006 makes plain, expertopinion evidence is admissible if the fact-finder is likely to obtain substantial helpfrom the opinion in understanding other evidence in the proceeding or in ascertainingany fact that is of consequence to the determination of the proceeding. Even on thebroadest of approaches, expert evidence about New Zealand law is not admissible inany proceedings. It simply is not evidence. It cannot assist a fact-finder.[187] We are conscious that s 12A(4) of the Family Court Act provides for arelaxation of the rules of evidence in proceedings before the Family Court:12A Evidence(4) The effect of section 5(3) of the Evidence Act 2006 is that that Actapplies to the proceeding. However, the court hearing the proceedingmay receive any evidence, whether or not admissible under theEvidence Act 2006, that the court considers may assist it to determinethe proceeding.[188] However any evidence that the Family Court receives under this provisionmust still be "evidence": that is, it must relate to facts, and must assist the fact-finderto establish relevant facts.107[189] We do not doubt the Professor's expertise in this field of law. However, thepractice of filing expert evidence on questions of New Zealand law, which this Courthas encountered from time to time, is wholly inappropriate. It seeks to clothesubmissions on the law made by a party with additional authority because thosesubmissions are supported by an expert commentator. This adds nothing to the107 See also Evidence Act 2006, s 6(a).proceedings: anything the "expert" says could be advanced by counsel as asubmission, and evaluated by the judge on its merits. Not only does it add nothing, itrisks wasting significant time and money. How are other parties supposed to respondto "evidence" of this kind? Should they file affidavits on the law in response? If theydo not, will their submissions carry less weight? Should a party that disagrees with aproposition advanced in the "evidence" require the expert to attend and becross-examined about the law? That would duplicate time spent on submissions, andwould do so in a particularly unhelpful and unproductive manner.[190] In Penny v Commissioner of Inland Revenue the Supreme Court had this to sayabout the filing of affidavits expressing views on legal issues:108[32] For his part, the Commissioner objects to portions of Mr Shewan'sevidence in which Mr Shewan expressed his views on some of the legal issuesin the case. It seems to us that the Court of Appeal dealt correctly with thisobjection. Randerson J said that this material had no place in the evidence ofan expert witness and should more properly have come from counsel. To thatextent, the Court of Appeal put Mr Shewan's evidence to one side. So do we.But of course this Court did hear the same arguments canvassed by Mr Harleyin his submissions. So there is no practical consequence of the upholding ofthe objection. It should, however, be observed that it is undesirable andwasteful of time and effort of both parties when such material appears inexpert briefs of evidence. The practice of including it should stop. If itpersists, courts should require amended briefs to be filed.[191] As the Supreme Court said more than 10 years ago, the practice of includingmaterial of this kind in evidence should stop. Lawyers should know better than topermit affidavits of this kind to be filed. If they are filed, they should not be read.An award of costs may be made in favour of a party put to the trouble of objecting tosuch affidavits.Issue one: appropriateness of judicial review of s 133 ordersThe issue[192] As a matter of logic, the first issue that needs to be considered is whether theapplications for judicial review of Family Court orders under s 133 of COCAamounted to an abuse of process, as the Attorney-General submits.108 Penny v Commissioner of Inland Revenue [2011] NZSC 95, [2012] 1 NZLR 433 (emphasis addedand footnote omitted).Submissions[193] Ms Chan QC, counsel for the Attorney-General, submits that s 143(3A)(b)(iii)of COCA provides that no appeal may be made to the High Court in respect of certaindecisions, including a decision under s 133 to obtain a psychological report. Leave isrequired to bring any appeal from the Family Court to the High Court in respect of aninterlocutory decision under COCA.109 But in relation to certain decisions specifiedin s 143(3A), including s 133 orders, even the ability to seek leave to appeal isexcluded. The underlying policy rationale, Ms Chan submits, is to preventFamily Court proceedings being unduly protracted, consistent with the principle ins 4(2)(a) of COCA that decisions affecting a child should be made and implementedwithin a time frame that is appropriate to the child's sense of time.110 A party shouldnot be permitted to use judicial review proceedings to achieve an outcome whichwould not be available under COCA. It is impermissible "to accomplish via a backdoor that which the statute expressly prohibits if entry is attempted via the frontdoor".111 It is an abuse of process to seek to do so.[194] For the Newtons, Ms Chambers submits that s 143 of COCA does not oust theHigh Court's jurisdiction to perform its constitutionally essential task of ensuring thatstatutory powers are exercised only within their true limits. The courts approachprivative clauses cautiously. Here, there is no ouster clause that attempts to excludeor limit the availability of judicial review. In the absence of clear statutory language,Parliament cannot be taken to have intended to limit parties' access to judicial review.[195] For the children, Mr Cooke agreed with the submissions made by theAttorney-General that use of the Judicial Review Procedure Act to challengeinterlocutory rulings of the Family Court in care of children proceedings is an abuseof process.109 Care of Children Act, s 143(3).110 Malone v Auckland Family Court [2014] NZHC 1290 at [28], quoting T v E FC AucklandFAM-2007-004-2481, 2 July 2008 at [4]; and Rose v Family Court at Christchurch[2015] NZHC 1597, (2015) 30 FRNZ 293 at [24], quoting BLH v MNL [2014] NZHC 194 at [25].111 Norfolk Flats Ltd v Wellington City Council [1980] 2 NZLR 614 (HC) at 623.Discussion[196] The Family Court is a statutory court. Family Court judges exercise statutorypowers. Those powers are necessarily subject to judicial review before theHigh Court. We accept Ms Chambers' submission that it is clear that judicial reviewby the High Court is available in relation to decisions made by Family Court judgesunder COCA.[197] However the purpose of the judicial review jurisdiction is to ensure that powersare exercised lawfully and in a manner consistent with the statutory scheme underwhich the decision-maker operates. That requires consideration of the relevantlegislation as a whole.[198] It is well established that the High Court's judicial review jurisdiction inrespect of interlocutory decisions made by judges of the Family Court is to beexercised sparingly, in light of the statutory scheme.112[199] The importance of timely decision-making in the context of applications underCOCA is underscored by s 4(2)(a)(i), which requires any person considering thewelfare and best interests of a child — the paramount consideration under COCA —to take into account the principle that decisions affecting the child should be made andimplemented within a timeframe that is appropriate to the child's sense of time.Consistent with the need to make decisions in a timely manner, s 143(3) of COCApermits appeals from interlocutory and interim orders only with the leave of theFamily Court. Even that limited ability to appeal with leave is excluded by subs (3A)in relation to certain decisions, including decisions to obtain a psychological reportunder s 133.[200] In Malone v Auckland Family Court the applicant sought judicial review of aFamily Court decision declining leave to appeal under s 143(3). Ellis J observed that"except in a very clear-cut case of fundamental error", there was a risk that the grantof an application for review of a decision made under s 143(3) would undermine the112 Rose v Family Court at Christchurch, above n 110, at [11]; and Malone v Auckland Family Court,above n 110, at [53].policy objectives that underlie that provision.113 We agree. The risk that the policyobjectives that underlie s 143(3A) will be undermined by an application for judicialreview of a decision to which that subsection applies is even starker.[201] In her oral submissions Ms Chambers emphasised the additional criteria forobtaining a psychological report inserted in s 133 by the Care of Children AmendmentAct (No 2) 2013. Her argument was, in effect, that it was necessary for the High Courtto ensure, by means of judicial review, compliance with the mandatory requirementsParliament had specified in s 133(6) and (7). However the same 2013 legislationinserted subs (3A) in s 143. Plainly it was not Parliament's intention that orders madeunder s 133 should be able to be challenged by way of appeal, even with leave.Parliament could have permitted a limited right of appeal on a question of law. But itdid not do so. Reading the legislation as a whole, we consider that it would beinconsistent with the statutory scheme for relief to be granted in judicial reviewproceedings in respect of a decision under s 133 except in a very clear-cut case offundamental error. And even then, the Court should be cautious about permittingjudicial review proceedings to be used to circumvent the clear statutory intention thatapplications under COCA should not be delayed by satellite litigation aboutinterlocutory orders.[202] In particular, we do not consider that an order under s 133 may be set aside injudicial review proceedings merely because the High Court judge considers that thecriteria set out in s 133(6) were not met. It is difficult to envisage circumstances inwhich judicial review would be granted of a s 133 order made by a specialist judge,who can be expected to be very familiar with the provision. It will usually be implicitin the making of an order for a s 133 report that the criteria have been considered bythe judge, and the judge is satisfied that the criteria are met. It would be a most unusualcase in which it could be established that the criteria were not considered: it is notnecessary for the judge to recite the criteria, let alone analyse each one separately.And it would be a most unusual case in which it could be said that it was not open tothe judge to be satisfied that the criteria were met — that is, to form the view that the113 Malone v Auckland Family Court, above n 110, at [53].criteria were met.114 A High Court judge would need to be persuaded that it was notopen to the Family Court judge to form that view.[203] In this case, the possibility that relevant information about the children mightbe obtained from another source — the children's paediatrician — did not mean thatit was not open to Judge de Jong to form the view that a psychological report wouldprovide information that was essential for the proper disposition of the application.We consider that it was well open to Judge de Jong to form that view. That was thequestion for the High Court judge; not whether the High Court judge considered thatthe statutory threshold was met.[204] We add that the mere fact that a party has applied for judicial review of an ordermade under s 133 does not operate as a stay of the s 133 order, and should not delaythe process of obtaining a report directed under s 133 unless interim relief is soughtand obtained. The High Court should be slow to grant interim relief preventingimplementation of a s 133 order, having regard to the statutory scheme. If interimrelief had been opposed in the present case, it would have been difficult to justify themaking of interim orders preventing the psychologist appointed under s 133 frombeginning preparation of a report. At most, an interview of the children might havebeen deferred for a short period to enable the judicial review proceedings to be heardas a matter of urgency. But we cannot see any reason to delay other aspects of thepsychologist's work, such as interviews with the relevant adults and other medicalprofessionals, and consideration of existing written reports.115[205] Courtney J does not appear to have had the benefit of submissions from counselon the appropriateness of intervening by way of judicial review in respect of s 133orders. There is no reference in the first High Court judgment to s 143(3A) of COCA,or to the authorities on the need for circumspection in judicial review proceedings inrespect of interlocutory decisions under COCA. The Judge was invited to form herown view on whether the statutory threshold for making a s 133 order was met, ratherthan asking whether it was open to Judge de Jong to form that view.116 Nor does114 Commerce Commission v Woolworths Ltd [2008] NZCA 276, (2008) 12 TCLR 194 at [97].115 For the various sources that a psychologist draws on to prepare a s 133 report, see the evidence ofProfessor Seymour at [32], set out at [175] above.116 First High Court judgment, above n 9, at [32].Courtney J appear to have had the benefit of submissions on the wide range of sourcesthat a psychologist would draw on in preparing their report, in addition to interviewingthe children, or on the ways in which a psychologist seeking to interview the childrenwould first seek to ensure their informed consent to the interview.[206] In summary, for the reasons set out above we consider that it will only beappropriate for the High Court to exercise its jurisdiction to review a decision unders 133 in very rare circumstances where:(a) Something fundamental has gone wrong with the decision.That threshold is not met merely because the High Court judgeconsiders that the criteria in s 133(6) and (7) are not satisfied. It wouldbe met if for example the decision was affected by apparent bias, andpossibly also where the decision had been pre-determined. We returnto the question of pre-determination at [244] to [268] below.(b) It is necessary to do so in order to avoid adverse consequences thatcannot be remedied by waiting for a final decision and exercising rightsof appeal at that time. We would have thought it would be rare for thepreparation of a psychologist's report to fall into this category, bearingin mind that conducting an interview with the child in question is onlyone part of the psychologist's task, and that the psychologist can beexpected to approach that element of the task using their professionalskill and care and in a manner consistent with their ethicalresponsibilities.Issue two: ascertaining children's views in relation to obtaining s 133 reportThe issue[207] Is it necessary for a child's views to be obtained before the Family Court directsthat a s 133 psychologist's report is obtained? Is this required by s 133(7), or by s 6of COCA?Submissions for the Newtons[208] Ms Chambers supported the result reached in the first High Court judgment.She submitted that it is always necessary for a child's views to be obtained before theFamily Court directs that a s 133 psychologist's report is obtained. This, she said,flows from s 133(7): the reference to ascertaining the "parties'" views must, in lightof the scheme of COCA, be read as including the views of the child who is the subjectof the report. In addition, she said, this necessarily flows from s 6 of COCA read inlight of art 12 of the CRC.[209] Ms Chambers emphasised the "direction of travel" reflected in theFamily Court (Supporting Children in Court) Legislation Act, and the report of theIndependent Panel that prompted those reforms.117 As the Independent Panelobserved, children "want to be better heard and have more opportunities to expresstheir views".118[210] Ms Chambers submitted that the court should not be "frog-marching" childrenoff to see a psychologist, for an extended interview of many hours, without firstseeking their views. The views expressed by Professor Seymour were paternalistic,and out of step with the direction of travel in this field, and the increasing emphasisplaced on effective participation by children in decisions that affect them. It is toolate, she submitted, for a psychologist to obtain the children's views after beingappointed.Submissions of other parties[211] For the Attorney-General, Ms Chan submitted that Courtney J was wrong tofind the children's views should have been taken into account by the Family Courtbefore ordering a psychologist's report under s 133 as:(a) this is not required by s 133(7), as children are not parties toproceedings under COCA;117 Ministry of Justice Te Korowai Ture ā-Whānau: The final report of the Independent Panelexamining the 2014 family justice reforms (May 2019).118 At [34].(b) it is not required under s 6 of COCA, based on the text and legislativehistory of that provision, a proper interpretation of art 12 of the CRC,and the welfare and best interests of the child;(c) section 133(6) does not impose this requirement; and(d) the LFC has a discretion as to whether a child's views are obtained priorto a s 133 report being ordered.[212] Ms Chan emphasised the wide range of decisions that may need to be made inany case concerning the care of a child, including:(a) appointment of an LFC, and settling the brief of that lawyer;(b) requesting a report from Oranga Tamariki;(c) requesting a cultural report;(d) costs decisions;(e) adjournment of hearings;(f) making discovery orders; and(g) imposing sanctions on a parent for breach of a parenting order.[213] She submitted that requiring a child's views to be sought with respect to everyprocedural decision of this kind is not in the child's best interests: that should be thetouchstone for decision-making under COCA.[214] Ms Chan agreed with the submissions made by Mr Cooke that a child shouldbe supported to participate in most substantive decisions. But even then, shesubmitted, this is not appropriate in respect of all substantive decisions: for example,interim protection orders where there is a risk of imminent danger.[215] Ms Chan submitted that the delays that would result from imposing arequirement that children be consulted in respect of every decision made by aFamily Court judge would make it impossible to decide applications under COCAwithin the child's sense of time, as required by s 4(2)(a)(i). It would have a significantadverse impact on Family Court processes.[216] Ms Chan noted that s 9B(2) of the Family Court Act refers to the LFC meetingwith the child or young person and ascertaining the child's views on matters affectingthe child if it is appropriate to do so. That provision expressly contemplates that therewill be circumstances in which it is not appropriate to ascertain a child's views onsome matters.[217] Ms Chan also emphasised the expert view of Professor Seymour about theappropriateness of seeking a child's views on whether a s 133 report should beobtained. She emphasised his view that to require, or even invite, children'sparticipation on procedural issues of this kind runs the strong risk of further exposureto conflict, to the detriment of the child's welfare. Discussion about the report mayheighten the child's sense of responsibility for the outcomes that result fromsubsequent court proceedings. It may cause further distress to the child. It mightcause loss of confidence in the judicial process, if an order is made contrary to theirexpressed views. A parent may seek to influence the child against the report, whilethe other parent may seek to encourage the child to support it. It would be difficult forthe court to assess whether there had been such influence without a psychologist'sreport, resulting in an essentially circular process. Declining a s 133 report on thebasis of a child's objection would impede the accumulation of evidence required forappropriate decision-making. And, as Professor Seymour said, a full explanation ofthe process of a s 133 report is most appropriately provided to the child by thepsychologist. The child's involvement in the process is best managed at the pointwhere the psychologist, who is skilled in conducting interviews with children whilesensitive to the need to protect them from harm, gains informed consent.[218] In response to Ms Chambers' argument that it is too late to seek the children'sviews once a psychologist has been appointed, Ms Chan submitted that it is alwaysopen to a psychologist to report to the court that the children were not willing to meetwith them, or to discuss certain issues. It is the psychologist, drawing on theirprofessional expertise, who is best placed to explore such matters with a child.[219] In response to questions from the Court, Ms Chan accepted that there is no hardand fast rule that a child's views should not be ascertained in relation to proceduraldecisions. Rather, she submitted, both the LFC and the judge have a discretion to seeka child's views in a particular case if they consider that it is appropriate to do so.But that will depend on context. It is not required in every case.[220] Mr Cooke, for the children, emphasised the need for a nuanced approach bythe LFC and by the courts. He submitted that the views of children should be soughton matters that affect them, that they need to know about, and may want to express aview on. That will depend on the issue, the age of the child, and other circumstances.[221] Mr Cooke submitted that the children are not parties, so s 133(7) does notapply. Section 6(2) of COCA does apply. But it does not necessarily mean that thecourt must hear from the child. The LFC will need to exercise judgement, dependingon the issue and the child, as to whether to obtain a child's views on a particular issueand place those views before the court. Where the LFC does so, the court is requiredto take those views into account. The court could also specifically require thechildren's views to be ascertained by the LFC. But primarily, Mr Cooke submitted,this is a matter for the judgement of the LFC. There is a balance to be struck by theLFC between involving the child enough and involving them too much, as that alsocan be damaging.[222] Mr Cooke emphasised that lawyers who are appointed as LFCs under COCAare very experienced, and are required to exercise judgment in many respects inperforming their functions.[223] Ms Fisher QC, who appeared for the NZLS as intervener, submitted that innearly all circumstances it will not be appropriate to obtain a child's views on whethera s 133 report should be obtained:(a) This is not a matter affecting a child any more than the appointment ofLFC, obtaining a social worker's report or a cultural report. These areprocedural steps to gather information to enable the court to makedecisions affecting the child, rather than decisions that affect the childin and of themselves.(b) The LFC is not the best person to discuss a potential s 133 report withthe child. Rather, the psychologist appointed to prepare the report isthe appropriate person, for the reasons explained by Professor Seymour.There may be some cases where the LFC can properly raise the questionof willingness to participate in an interview with a psychologist with achild, but that cannot be a mandatory requirement.(c) Section 133 reports are used in high conflict situations, often involvingvulnerable children. It is rare to seek their views on obtaining a s 133report in such circumstances.Discussion[224] The United Nations Committee on the Rights of the Child has identified theright of all children to be heard and taken seriously as one of the fundamental valuesof the CRC. Article 12, which addresses that right, is one of the general principlesunderpinning the CRC. It establishes not only a right in itself, but should beconsidered in the interpretation and implementation of all other rights.119The Committee also emphasises how art 12 is complemented by art 3, which providesthat the best interests of the child are a primary consideration in all actions undertakenconcerning children. Article 3 establishes the objective of achieving the best interestsof the child, and art 12 provides the methodology for reaching that goal by hearing thechild:120In fact, there can be no correct application of article 3 if the components ofarticle 12 are not respected. Likewise, article 3 reinforces the functionality ofarticle 12, facilitating the essential role of children in all decisions affectingtheir lives.119 United Nations Committee on the Rights of the Child General comment No. 12 (2009): the rightof the child to be heard UN Doc CRC/C/GC/12 (20 July 2009) at [2].120 At [74].[225] Section 6 of COCA gives effect to art 12 of the CRC in the context ofproceedings under COCA, as the 2021 amendment makes explicit.121 In proceedingsin relation to care for or contact with a child, the child must be given reasonableopportunities to express views on matters affecting that child. Any views the childexpresses must be taken into account.[226] Section 4(4) makes it clear that child's the right to a reasonable opportunity toexpress views under s 6 is not limited by the requirement in s 4(1) that the welfare andbest interests of a child in his or her particular circumstances must be the first andparamount consideration in proceedings under COCA. It is not open to a court orother decision-maker to decide that a child should not be given a reasonableopportunity to express their views because that would not be consistent with theirwelfare and best interests.[227] However the requirement in s 6(2) is that the child be provided with reasonableopportunities to express their views on matters that affect them. In determining whatopportunities ought reasonably to be provided, the welfare and best interests of thechild will be a paramount consideration.[228] The importance of ascertaining the views of a child on matters that affect themis also reflected in the best practice guidelines for LFCs issued by the NZLS.The guidelines provide that:122A child must be given reasonable opportunities to be heard (either directly orindirectly) in any judicial and administrative proceedings affecting them asprovided for by section 6(2)(a) of COCA, section 5(d) of the CYPTF Act andArticles 9.2 and 12.2 of UNCROC.[229] It would be difficult to overstate the importance in the scheme of COCA of thechild's right to express their own, authentic views on matters that affect them, and tohave the views they express taken into account. Ensuring that children are supportedto exercise that right is an essential corollary of treating their welfare and best interestsas a paramount consideration.121 Family Court (Supporting Children in Court) Legislation Act, s 6.122 New Zealand Law Society Lawyer for the Child Best Practice Guidelines, cl 4.2.[230] But we accept the submission of the Attorney-General, the NZLS, andMr Cooke, that this does not translate into a blanket requirement that a child's viewsmust be sought on any procedural step in proceedings under COCA. Where a decisionwill have a material effect on the child, they must be given a reasonable opportunityto express a view on the matters to which the decision relates. Different decisions willaffect a child to a greater or lesser degree. What amounts to a reasonable opportunityto express views will turn on the significance of the decision for the child, thetimeframe within which the decision is to be made, the age and maturity of the childand all their other circumstances, and the practical realities of seeking their views in atimely way. So for example it will not usually be necessary to seek a child's viewsbefore deciding to appoint a lawyer to represent the child under s 7 of COCA. This isa procedural decision that is usually taken at an early stage. Its effect is, among otherthings, to facilitate the future expression of views by the child. It would be difficultto seek the child's authentic views on such a step, and it would cause unnecessary andavoidable delays to do so.[231] That is not to say that the child's views would not be relevant if, for example,the relationship between the child and the person appointed as LFC were to breakdown irretrievably. A judge would need to consider whether to make an alternativeappointment in those circumstances, taking into account the child's views. But forinitial, essentially routine, LFC appointments the child's views need not be sought inadvance.[232] Nor is it always necessary to seek a child's views before making urgent interimorders to ensure the child's safety. If the child's views about their circumstances andabout possible interim arrangements are known to the court, those views must be takeninto account. But if there is real urgency then it would not be reasonable — and wouldbe inconsistent with s 4 — to delay taking action to protect the child. Once they aresafe, their views about what comes next can be ascertained.[233] It is neither possible nor appropriate to draw a bright line between substantivedecisions, in respect of which a child must have an opportunity to express their views,and procedural matters, where that is not required. We accept the submission ofMr Cooke that a more nuanced approach is required which involves the exercise ofjudgment by a lawyer appointed to represent a child and by the court. Some proceduraldecisions may have a significant effect on a child, and it will be appropriate for thechild to be informed about the issue and given an opportunity to express views on it.[234] The need for an LFC to exercise judgement about the matters on which achild's view is sought is reflected in s 9B of the Family Court Act. The LFC mustmeet with the child. And, as s 9B(2) expressly provides, the LFC must ascertain thechild's views on matters affecting the child relevant to the proceedings if it isappropriate to do so. That judgement must of course be exercised having regard tothe strong direction in s 6 of COCA, and art 12 of the CRC.[235] What, then, of decisions to obtain a psychological report under s 133 ofCOCA?[236] Section 133(7) requires the court to have regard to the "parties'" wishes beforedeciding whether or not to obtain a psychological report, if the court knows the parties'wishes or can speedily ascertain them. It is in our view quite clear that a child who isthe subject of an application for a parenting order is not a party to that application.COCA consistently distinguishes between the parties and the child who is the subjectof the application.123 We do not consider that s 6 requires the term "parties" in s 133(7)to be given an extended meaning, as Ms Chambers submitted. Rather, we considerthat the general approach to s 6 that we have described above applies equally in thes 133 report context.[237] A person appointed as LFC must exercise judgement about whether it isappropriate for them to seek the views of the child about the possibility that apsychological report will be obtained. They might do so in general terms. Or theymight ask whether the child is comfortable speaking with a particular psychologist, ifthat psychologist has previously met with the child. They might also inquire about thechild's willingness to discuss particular topics with a psychologist. But all of that is amatter for the judgement of the LFC, depending on the circumstances of the case. It isnot mandatory for them to do so in all cases.123 See for example Care of Children Act, ss 134(1), and 143(2) and (3).[238] Before a judge makes an order under s 133(5) the judge should considerwhether the views of the child are known. If their views are known, which wouldusually be because those views have been ascertained by the LFC, those views mustbe taken into account.124 But they are not of course decisive. If the child's views arenot yet known to the court, the judge will need to consider whether it would beappropriate to obtain the views of the child on matters such as whether a report shouldbe sought, or who should prepare one. Family Court judges are appointed for theirexpertise in matters of this kind. That expertise, and the experience they have indealing with many COCA cases on a regular basis, mean that they are particularly wellplaced to exercise judgment about such matters.[239] It seems likely that in many cases a judge will consider it is not necessary toseek a child's views on whether a s 133 report should be obtained before directing thepreparation of such a report. Such a report draws on many sources other thaninterviews with the child: the preparation of a report based on those sources does nothave any direct effect on the child. The impact on the child of directing a s 133 reportturns largely on whether the psychologist will conduct an extended interview with thechild, and on the topics that will be explored with the child. It seems to us that therewill often be a practical difficulty in obtaining the child's views on those matters inadvance of the meeting with the psychologist. It is difficult to see how the court couldassess the risk that those views have been influenced by a party without the assistanceof a psychologist's report. And it is difficult to see who could be better placed than apsychologist to explore the child's willingness to discuss sensitive topics. The processrisks becoming more than a little circular if the children's views on speaking to apsychologist must be obtained before the court directs that a s 133 report should beprepared. That circularity may mean, in many cases, that it is not reasonable to providean opportunity for a child to express a view on their willingness to be interviewed bya psychologist before the psychologist is appointed.[240] Another factor that bears on the reasonableness of seeking the child's viewspre-appointment is that the making of a s 133 order does not oblige the child toparticipate in an interview, and does not require the psychologist to persist in124 Section 6(2)(b).interviewing a child who is reluctant to participate. If the child does not want to meetwith the psychologist, the psychologist can seek directions from the court unders 133(9). Issues of this kind can be dealt with following appointment: confirmation ofthe child's willingness to be interviewed is not a precondition for a direction that as 133 report be prepared.[241] In any event, it is in our view very clear that if a Family Court judge makes anorder under s 133 that a psychological report be prepared there is no right of appealfrom that decision, even with leave. It is extremely difficult to envisage circumstancesin which such an order could successfully be challenged in judicial reviewproceedings, as explained above. Parliament has made it clear that once an order ismade under s 133, the determination of the substantive proceedings should not bedelayed by ancillary litigation about the appropriateness of such an order.[242] In summary, with the benefit of the extensive submissions we have receivedfrom the parties, the LFC and the interveners we have reached a view that differs fromthat expressed by Courtney J in the first High Court judgment at [33]. Section 133(7)did not require the views of the children to be taken into account before ordering as 133 report. Nor was this a mandatory requirement for making a s 133 order byreference to the scheme of COCA more generally. And even if we had considered thatit would have been preferable to seek the views of the children in this case — a matteron which we need not express a view — that would not be a basis on which to setaside the s 133 order in judicial review proceedings.[243] However this was not the main basis on which Courtney J's decisionproceeded. The focus of the first High Court judgment was the pre-determinationargument. We turn to consider that issue.Issue three: pre-determinationThe issue[244] The third issue is whether Judge de Jong had pre-determined the making of thefirst s 133 order, as Courtney J held in the first High Court judgment.125Attorney-General's submissions[245] Ms Chan submitted that the test for pre-determination is whether thedecision-maker's mind was closed, so that the decision was approached with a mind"already made up". A "blank mind" is not required. The question is whether afair-minded observer would consider that the judge pre-determined the matter.Pre-determination is not lightly found.126[246] Ms Chan submitted that nothing in the exchange between Judge de Jong andcounsel was indicative of pre-determination. Nothing suggested the Judge approachedmatters with a closed mind. By the time of the 27 November 2017 directionsconference, Judge de Jong was well aware of the history of fraught relations betweenthe parties, and the sensitivities regarding the children's mental state. As he confirmedin his report, he had read the parties' affidavits in advance of the hearing.Advance knowledge of a file, or "com[ing] to the hearing with a view" is not indicativeof pre-determination: this is permissible, provided a decision-maker is open to hearingsubmissions and changing their mind.127[247] Ms Chan submitted that Courtney J was wrong to place emphasis on the factthat at the outset of the hearing no counsel was actively seeking a direction for a s 133report.128 The LFC did not explicitly seek a s 133 report, but had stated in hermemorandum that consideration should be given to whether such a report wasnecessary. The intensity of conflict between the parties was evident from the LFC'smemorandum, and the wider history of the file. Also apparent from her memorandumwere the concerns regarding the children's vulnerability and anxiety and125 First High Court judgment, above n 9, at [28]–[30].126 CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA) at 179 per Cooke J, 193–194per Richardson J and 214 per McMullin J.127 Wilson v New Zealand Parole Board HC Christchurch CIV-2010-409-2933, 20 May 2011 at [15].128 First High Court judgment, above n 9, at [28].behavioural issues. The Judge's expression of concern about "what's happening" andhis statement that "I think we need a 133 report straight away" did not suggest a viewthat had already been formed. Rather, they reflected views being formed in the courseof the hearing. As this Court noted in Re Royal Commission on Thomas Case there is"no reason why [a tribunal] should not express tentative views. That is done everyday in the Courts".129 The Judge went on to say he thought a s 133 report was"very essential in this case given the dynamics on both sides". He listed the mattershe thought the psychologist should address and invited other thoughts from the partiesas to terms of reference. None were offered. He then prepared the brief and deliveredhis minute. It was only once he had heard the views of the parties and the LFC thathe decided to order a report, and settled the terms of the psychologist's brief.This would not suggest pre-determination to a fair-minded lay observer.[248] Ms Chan also submitted that Courtney J was wrong to find that the ability ofthe Judge to prepare the brief during the hearing indicated it was "more likely than notthat the Judge had already prepared the brief, and that his oral description reflected thebrief, rather than the brief being prepared following the decision to make the order".130That finding did not have regard to the terms of s 133, or the standard practice of theFamily Court as explained by Judge de Jong in his report. That standard practice wasalso described in the joint memorandum of counsel. Rather than being an indicator ofpre-determination, Judge de Jong's modification of his standard s 133 brief in thecourse of the hearing was an entirely appropriate and efficient use of time andresources by an experienced Family Court judge.Submissions for the Newtons[249] Ms Chambers submitted that Courtney J was right to find that Judge de Jongfailed to exercise his discretion pursuant to s 133, and pre-determined the issue ofwhether to order a psychological report. He was not open to persuasion, but ratherhad a "closed mind" and a set view that a report was essential.129 Re Royal Commission on Thomas Case [1982] 1 NZLR 252 (CA) at 279.130 First High Court judgment, above n 9, at [30].[250] Ms Chambers accepted in the course of argument that it is legitimate for adecision-maker to have a preliminary or "in principle" view on a matter which mustbe decided. That does not amount to pre-determination. However when they come tomake the actual decision, they must do so with a mind open to other alternatives.An open mind means that the decision-maker is "amenable to persuasion and do[es]not commit to a particular outcome in an individual cases".131[251] Ms Chambers submitted that Judge de Jong's "one-track" focus was evidentfrom the start. In his September 2017 memorandum Judge de Jong suggested that"[t]his might also be a case where a court appointed psychologist is required pursuantto s 133 COCA". The Judge did not pause to read the memorandum handed up onbehalf of the Newtons, and did not engage with the submission that ordering a s 133report could have a negative impact on the children and that their views should betaken into account. Nor did he address the submission that the matter should be stooddown pending the LFC meeting with the children and their paediatrician, and that allparties should have the opportunity to review the LFC's report (which would includethe children's views) before providing submissions on the issue of whether a s 133report ought to be obtained.[252] Nor, Ms Chambers submitted, did the Judge have regard to the mandatoryconsiderations set out in s 133(6), and factors such as the existence of historic reports,the availability of the paediatrician to produce a report or at least provide views, delay,and the fact that a psychological report could not be ordered to obtain the children'sviews. The comments made by the Judge during the issues conference did not suggesta preference, or even a pre-disposition. Rather, she submitted, they showed a closedmind.Discussion[253] As Courtney J noted in the first High Court judgment, the cases concerningpre-determination on the part of administrative decision-makers establish that a131 Save Chamberlain Park Inc v Auckland Council [2018] NZHC 1462 at [178], quoting PhilipJoseph Constitutional and Administrative Law in New Zealand (4th ed, Thomson Reuters,Wellington, 2014) at [25.5.5]. See also Financial Services Complaints Ltd v Chief Ombudsman[2021] NZHC 307, [2021] 2 NZLR 475 at [81]–[87].challenge on the basis of pre-determination must generally show actualpre-determination, not merely the appearance of pre-determination.132 However thecases involving judicial or quasi-judicial decision-makers have treated the"fair-minded lay observer" test as appropriate. That was the approach adopted byMallon J in Wilson v New Zealand Parole Board.133[254] We agree with Courtney J that the appropriate test, where it is claimed that ajudicial decision-maker has pre-determined a decision, is the fair-minded lay observertest. That aligns the test for pre-determination with the test for bias, giving effect tothe requirement that justice should both be done and be seen to be done.As Blanchard J observed in the Supreme Court in Saxmere Co Ltd v Wool BoardDisestablishment Co Ltd, this requirement reflects the fundamental importance of theprinciple that the tribunal be independent and impartial. Unless the judicial system isseen as independent and impartial the public will not have confidence in it, and in thejudiciary who serve in it.134[255] However the fair-minded lay observer is presumed to be intelligent and to viewmatters objectively. They are neither unduly sensitive or suspicious nor complacentabout what may influence a judge's decision. They must be taken to be a non-lawyerbut reasonably informed about the workings of our judicial system, as well as aboutthe nature of the issues in the case and about the facts pertaining to the situation whichis said to give rise to an appearance or of pre-determination.135[256] The fair-minded observer's appreciation of how the justice system works mustalso in our view include some knowledge of how directions conferences, such as theone in issue in the present case, are conducted; and an understanding that anexperienced judge who is properly prepared for a directions conference will often havea good sense of the directions that are likely to be needed to progress a proceeding atsuch a conference. These are matters that arise frequently. Indeed the making of a132 First High Court judgment, above n 9, at [2], referring to Philip Joseph Constitutional andAdministrative Law in New Zealand, (4th ed, Thomson Reuters, Wellington, 2014) at [25.5.5].133 Wilson v New Zealand Parole Board, above n 127, at [22]. See also Sisson v Canterbury DistrictLaw Society [2011] NZCA 55, [2011] NZAR 340 at [20]–[21].134 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35at [3].135 At [5].s 133 order is one of the matters that must be considered at any directions conferenceconvened under r 416Z of the Family Court Rules.136[257] It was appropriate, indeed desirable, that Judge de Jong prepared for theconference by reviewing the file and by considering what orders might be needed.It was equally appropriate that Judge de Jong had template documents for variousorders on his computer, and was able to prepare directions and briefs in a hearing inreal time. Similarly, the fair-minded observer would understand that in busy courtswhere judges conduct a number of short hearings in one day, decisions need to bemade promptly, and need to be recorded efficiently and concisely. EfficientFamily Court judges hearing a number of directions conferences in quick successioncannot be expected to reserve routine decisions and deliver lengthy written decisionsat a later date. To the contrary, it would be counterproductive for them to do so.[258] We also remind ourselves that "the rule of disqualification by reason ofpre-determination must be applied with the utmost caution".137 It is important not toconfuse experience and efficiency with pre-determination.[259] Applying the approach outlined above, we have reached a view that differsfrom that reached by Courtney J. We do not consider that any significance should beattributed to the fact that no party actively sought a s 133 report before the directionsconference. This was plainly an issue that needed to be considered at an early stageof the proceedings, as the Family Court Rules recognise. Judge de Jong had identifiedthe possibility that such a report would be needed in his September 2017memorandum. The possibility of such an order was also anticipated by thememorandum that the LFC handed up at that conference.[260] It seems to us that s 133(7) anticipates that the question of a psychologicalreport might arise in the course of a directions conference, rather than as a result of aformal application by one party. That is why that subsection requires the judge to takeinto account the parties' wishes if they are known or can be speedily ascertained.136 See Family Court Rules, rr 416Z and 416ZA(2)(e).137 CREEDNZ Inc v Governor-General, above n 126, at 193 per Richardson P, quoting English v Bayof Islands Licensing Committee [1921] NZLR 127 at 135 per Salmond J.The background assumption is that such an order may be made without the need for aformal application and notice of opposition. We also note that s 133(7) implicitlyprecludes an argument that natural justice requires that each party have a fullopportunity to respond to a proposal that a s 133 report be obtained. Having regard tothe nature and purpose of such reports, and the scheme of s 133, we think it isreasonably clear that this is an issue that is expected to be dealt with at an early stageof a proceeding as a question of case management, often relatively informally.[261] It is therefore unsurprising that the possibility of a s 133 report was anticipatedby Judge de Jong in September 2017, and unsurprising that it was dealt with at thedirections conference in the absence of any formal application.[262] It is also unsurprising that a very experienced Family Court judge who wasfamiliar with the history of conflict in relation to these children, and the sudden anddoubtless traumatic loss of their mother, might consider that he would be assisted byan up-to-date psychological report. We have reviewed the transcript of the hearing,and listened to the audio recording. We also have the benefit of the report fromJudge de Jong to the High Court. These materials do not suggest to us that the Judgecame into the hearing having decided that a s 133 report should be obtained, or that hehad a closed mind in relation to the desirability of such a report and its content.[263] Rather, the issue was raised early in the hearing by the LFC and counsel forthe applicant grandmother. The Judge knew that s 133 reports had previously beenprovided by Ms Wali. But these were now significantly out of date — they precededthe death of the children's mother and the altered living arrangements that followedthis traumatic event. It appears to us that as the hearing proceeded the Judge formedthe view that an updated s 133 report was essential. With a view to making progresstowards determining the vigorously contested parenting order application, the Judgeproceeded to get a s 133 report underway. The Judge would have been conscious ofthe long delays in obtaining such reports noted in the joint memorandum referred to at[182]–[183] above: further delay would have raised justifiable concerns in terms ofs 4(2) of COCA. The fact that the Judge did not accept the submission that he shoulddefer directing a s 133 report until other steps had been taken did not indicate that hehad a closed mind. It simply indicated that having heard from Ms Chambers, he wasnot persuaded by the arguments she had advanced for deferring the making of such anorder.[264] We add that there is nothing in the submission that the Judge did not pause toread Ms Chambers' memorandum. That was not a realistic expectation in the contextof a 15-minute directions conference. The Judge invited Ms Chambers to summariseher clients' position orally. She conveyed very clearly and effectively the reasons forher submission that a s 133 order should not be made at that conference. She explainedwhy she considered that a decision should be deferred, acknowledging that her clients'had different views about whether such a report should be obtained, with one parentin favour and the other "not so sure". The Judge heard her. But he was not convinced.That does not indicate pre-determination.[265] Nor is there anything in the fact that the brief for the psychologist was preparedat the hearing. It is clear from the audio recording, and confirmed by the Judge'sreport, that the brief had not been prepared in advance. A fair-minded lay observerwould have seen the exchange between the Judge and counsel about the content of thebrief for the psychologist, including an opportunity to comment on its proposed terms,and would then have seen the Judge type for some minutes before printing off thebrief. They would have understood that it was prepared at the hearing, probably onthe basis of a template. Any concern they might have had on that score would havebeen allayed by the Judge's report.[266] Nor do we consider that the fact that the Judge did not work systematicallythrough each of the criteria in s 133(6) and (7) indicates pre-determination. The Judgewould have been well familiar with these criteria. It is unrealistic to expect a Judgemaking an order of this kind to refer expressly to each limb of the relevant provisionsorally at the hearing or in a written decision. If any counsel wished to raise a concernabout whether any of these criteria was met, they had an opportunity to do so.Ms Chambers did just that. But as we have already said, the Judge was not persuaded.We add that failure to consider a relevant factor would not necessarily indicatepre-determination, in any event. A judge with an open mind may omit to consider arelevant factor: such an omission does not indicate that the judge had a closed mind.Having listened to the audio recording of the hearing, we consider that the Judge'scareful approach was beyond reproach.[267] It follows from this conclusion, and our earlier conclusion in relation to thecircumstances in which judicial review might be available in respect of a s 133 order,that the first s 133 order should not have been set aside. The appeal from the firstHigh Court judgment must be allowed.[268] However given the amount of time that has passed, and the subsequent stepsthat have been taken, it would be inappropriate to simply restore the s 133 order madeby Judge de Jong. We return to the question of relief after considering the issues raisedin the appeal from the third High Court judgment.Issue four: reviewability of LFC reportThe issue[269] The Newtons' appeal from the dismissal of their second cause of action in thesecond judicial review proceeding raises issues about the availability of judicialreview in relation to a report by an LFC. Can the High Court intervene by way ofjudicial review if an LFC's report is wrong in law, or contains material that it oughtnot to contain? If there are defects of that kind in an LFC report, does that taint anydecision made by a Family Court judge in reliance on the LFC report, with the resultthat that decision also is liable to be set aside in judicial review proceedings?Submissions on appeal[270] Ms Chambers submitted that LFCs are appointed under s 7 of COCA and s 9Bof the Family Court Act. They perform a statutory role. In performing that role, theyhave a duty and responsibility to inquire into the matters raised in their brief, and tofile a report that is consistent with the LFC's obligations.[271] In this case, Ms Chambers said, the LFC should have filed a report that wasconsistent with the first High Court judgment and with ss 6 and 7 of COCA.Her report should also have complied with the Principal Family Court Judge's practicenote, and the NZLS best practice guidelines for LFCs.[272] Ms Chambers submitted that the process adopted by the LFC, and her report,failed to comply with her statutory obligations by a wide margin in a number ofmaterial respects:(a) the LFC did not obtain either the children's, or their paediatrician's,views as to whether a s 133 report ought to be obtained;(b) the LFC report contained unnecessarily prejudicial material; and(c) the LFC report contained extensive evidence (including hearsay) inbreach of s 9B(4) of the Family Court Act, the practice note issued bythe Principal Family Court Judge and the NZLS best practice guidelinesfor LFCs. It contained highly prejudicial and irrelevant material, whilefailing to identify and promote the children's views on the matteraffecting them.[273] Ms Chambers submitted that the third High Court judgment was wrong inproceeding on the basis that the Newtons were not entitled to relief in judicial reviewproceedings because their rights were not affected. She emphasised the findings ofthe High Court in Zhao v New Zealand Law Society that the conduct of the NZLSinterviewers in fitness-for-practice examinations was amenable to review because theinterviewers' investigative and recommendatory powers involved the exercise of astatutory power; the recommendations are given considerable weight by the NZLS;and even at a preliminary stage, a power to investigate and recommend may "go offthe rails" such that it is necessary that a court quash the decision.138 Judicial review isthe only cause of action available to ensure a check on the LFC's role. And wheresubstantive grounds for relief are made out, there is a strong remedial presumption thatwrongs should be righted.139 She submitted that the Newtons are entitled to adeclaration that the LFC report is ultra vires as a formal vindication of their rights,recognition of the breach, and to assist with ensuring future compliance by LFCs.138 Zhao v New Zealand Law Society [2012] NZHC 2169, [2012] NZAR 894 at [66].139 See Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [60]–[61].[274] We need not separately summarise the submissions of the other parties, whichare reflected in our discussion below.Discussion[275] The Newtons' attempt to seek judicial review of the LFC report is in our viewwholly misconceived. The LFC is appointed under statutory provisions. But theinquiries that an LFC carries out and the reports they prepare are not amenable tojudicial review.[276] The legislation does not confer on the LFC a power or right to prepare a report.A report by an LFC to the Family Court is simply a submission made by the LFC onbehalf of the children they have been appointed to represent, having regard to theviews expressed by the child and the LFC's own views about the welfare and bestinterests of the child. The LFC's submissions may address questions of fact andquestions of law. Those submissions are then considered by the court, along with allother submissions. The submissions of the LFC, like other counsel's submissions, arecontributions to the court's decision-making. It is for the court to determine whetherthey are assisted, or persuaded, by the content of an LFC report.[277] Nor does an LFC have any special statutory powers to carry out inquiries.The inquiries that an LFC carries out in order to perform their role are simply theordinary inquiries carried out by any lawyer on behalf of their client. No one iscompelled to respond to their inquiries. And the product of those inquiries, though itis often referred to as a "report", is in truth — as explained above — simply asubmission by the LFC to the court.[278] An LFC does not exercise any statutory power of decision as defined in theJudicial Review Procedure Act, for the simple reason that an LFC does not decideanything: that is the role of the court, after hearing from the parties and from theLFC.140140 Judicial Review Procedure Act, s 4.[279] Nor does an LFC exercise any other form of statutory power as that term isdefined in s 5 of the Judicial Review Procedure Act:5 Meaning of statutory power(1) In this Act, statutory power means a power or right to do any thingthat is specified in subsection (2) and that is conferred by or under—(a) any Act; or(b) the constitution or other instrument of incorporation, rules, orbylaws of any body corporate.(2) The things referred to in subsection (1) are—(a) to make any secondary legislation; or(b) to exercise a statutory power of decision; or(c) to require any person to do or refrain from doing anythingthat, but for such requirement, the person would not berequired by law to do or refrain from doing; or(d) to do anything that would, but for such power or right, be abreach of the legal rights of any person; or(e) to make any investigation or inquiry into the rights, powers,privileges, immunities, duties, or liabilities of any person.[280] None of these limbs applies in relation to an LFC. The LFC does not have apower or right conferred by any Act to make an investigation or inquiry into the rights,powers, privileges, immunities, duties, or liabilities of any person for the purposes ofs 5(2)(e) of the Judicial Review Procedure Act. As explained above, the inquiriesmade by an LFC have no special statutory backing. And plainly the preparation of areport by the LFC does not come within any of the other limbs of s 5(2).[281] Nor is there any common law basis for judicial review of a report prepared byan LFC. The LFC's functions do not involve the exercise of any public power of thekind that is supervised by the High Court in the exercise of its judicial reviewjurisdiction.[282] Nor, at the risk of stating the obvious, does an LFC act unlawfully merelybecause their submissions to the Family Court contain incorrect legal propositions, ormaterial that should not form part of their report. An LFC report does not have anyspecial status. Of itself, it has no effect on anything or anyone. Other parties have anopportunity to make submissions in response to any such report. The judge will takethe report into account, just as the judge will take all counsel's submissions intoaccount. But ultimately, any decision must be made by the judge. If, for example, theLFC report contains legal propositions that are wrong, and those propositions are notaccepted by the judge, they have no effect. If the judge accepts those incorrectpropositions, and decides an issue on the basis of those propositions, it is the judge'sdecision that is wrong in law. And it is the judge's decision that has an effect on theparties and the child. COCA prescribes the manner in which such decisions may bechallenged on appeal on the ground that they are wrong.[283] Zhao is clearly distinguishable: the LFC is not exercising a statutory power,and the LFC's report has no special weight in the hearing by the Family Court. If theLFC goes "off the rails" there are many other ways of addressing that concern, andgetting matters back on the rails. Judicial review is neither necessary nor appropriate.Ms Crawshaw identified a number of other forms of redress that are available ifconcerns arise in relation to an LFC report:(a) The judge can be invited by any party to disregard any inappropriate,or incorrect, propositions in an LFC report.(b) The LFC is an officer of the court, under the control of the court.The Family Court can give directions and guidance to the LFC in thecourse of the Family Court proceedings.(c) The court has relevant powers under the Family Court Rules and itsgeneral case management powers. For example, it can require the LFCto provide a supplementary report, or a replacement report, if an initialreport is unsatisfactory.(d) There is a well-established procedure for dealing with complaintsregarding LFCs, set out in the practice note issued by thePrincipal Family Court Judge141. That procedure was settled inconsultation with the Ministry of Justice and the Family Law Sectionof the NZLS. Complaints can also be made to the NZLS.(e) Redress may also be available in the form of an appeal from, or judicialreview of, the decision of a judge made in reliance on a flawed LFCreport.[284] We do not consider that judicial review is available in respect of an LFC report.The appropriate response to errors of law in an LFC report is for other parties to makesubmissions that the propositions of law are incorrect, and persuade the judge not toadopt them. If the judge does adopt them, then the appropriate course is to challengethe judge's decision by exercising appeal rights under the relevant legislation, orseeking judicial review in exceptional cases. Similarly, the appropriate response tothe inclusion in an LFC report of material that ought not to be included — for example,factual information that ought to be provided by way of evidence, or inaccurateinformation — is by way of submission to the judge, inviting the court to disregardthat material. There is no principled legal basis for judicial review of an LFC reporton the grounds that it includes such material.[285] Duffy J was prepared to contemplate the possibility that there may be occasionswhen the LFC performs their statutory function in a manner that has a direct effect,rendering any unlawful performance amenable to review.142 We have not identifiedany context in which that might be the case. But even accepting that there might becases we have not anticipated where judicial review of the actions of an LFC wouldbe available and appropriate, it is in our view very plain that this is not such a case.141 Family Court Practice Note: Lawyer for the Child – Selection, Appointment and other matters,above n 75, cl 12.142 Third High Court judgment, above n 40, at [13].[286] We therefore agree with Duffy J that, for the reasons she gave and theadditional reasons set out above, the Newtons cannot obtain a declaration that thereport of the LFC is ultra vires.[287] This conclusion means that we do not need to consider the criticisms made byMs Chambers of the LFC's report. But in fairness to the LFC we should record thatthere was nothing improper in her seeking to persuade the Judge that it was open tohim to proceed on the basis that the children's views need not be sought beforedirecting that a s 133 report be obtained. She drew the Judge's attention to the contraryview expressed by Courtney J in the first High Court judgment. The LFC cannot becriticised for making the submission that it was open to Judge Burns to adopt theapproach that the LFC considered was preferable as a matter of statutory interpretationand good practice (an approach that we have concluded was correct), even if thatsubmission was wrong in law.[288] The attempt by the Newtons to challenge the third High Court judgment on thebasis that the LFC report was an irrelevant consideration was equally misconceived.If a judge is persuaded by an incorrect proposition of law in the submissions of anLFC or any other counsel, the problem is not that the judge has had regard to anirrelevant consideration: the problem is that the judge has made an error of law.The appropriate remedy for such an error will depend on the nature of that error, andthe nature of the decision made. In this case, there is no right of appeal even onquestions of law from s 133 orders. That prohibition on appeals cannot becircumvented by an indirect challenge by way of judicial review.[289] The Newtons' appeal from the dismissal of the second cause of action in thethird High Court judgment must therefore fail.Issue five: claim for removal of documents from the court fileThe issue[290] The Newtons sought orders that Judge de Jong's October 2018 minute,re-released minute and recall decision (which we described above as "the challengeddocuments") be removed from the Family Court file. They said the challengeddocuments were issued by Judge de Jong without hearing from the parties, in breachof the requirements of natural justice. They risk prejudicing future judges against theNewtons. As the Newtons said in their joint affidavit, it seemed to them thatJudge de Jong "had taken a negative view of us and our approach to the case and hadrecorded that on the file for all future decision-makers to see". The minor edits thatJudge de Jong made in response to their recall application did not resolve theirconcerns.[291] This argument was rejected by Duffy J in the third High Court judgment.143The Newtons argue on appeal that she was wrong to do so.Submissions on appeal[292] Ms Chambers submitted that the Newtons' third cause of action was notconfined to an allegation of apparent bias, which is how Duffy J had approached it.Rather, they alleged that the challenged documents breached natural justice, includingthe right to a fair hearing, the right to the appearance of an impartial decision-maker,and risked the appearance of partial decision-makers in future hearings in theproceeding. The Newtons said that for each of those reasons the documents ought tobe removed from the Family Court file.[293] Ms Chambers noted that no advance warning was given to the parties that thematters canvassed in Judge de Jong's October 2018 minute were to be the subject ofjudicial comment. She submitted that the Judge's comments in that minute wereintemperate, and failed to give effect to the Judge's obligation to take care to avoidunnecessary criticism in the exercise of the judicial function.144 Judgments shouldstand without further clarification or explanation: it was inappropriate forJudge de Jong to enter into a lengthy explanation of why he made the decisionto order a s 133 report, why Courtney J's reasoning was wrong, and why he had notpre-determined the issue. Duffy J was right to find that the re-released minute "doeslittle to remedy any of the concerns the applicants raised with the original minute".145143 Third High Court judgment, above n 40, at [51]–[57].144 Guidelines for Judicial Conduct 2019 at [43].145 Third High Court judgment, above n 40, at [32].[294] Taken overall, the Newtons say, the minute contained inaccurate and highlyprejudicial material which portrayed them in a poor light, and deprived them of theright to a fair and impartial decision-maker. The decision ought to be expunged fromthe record for the duration of the underlying proceeding.[295] Ms Chambers submitted that Duffy J was right to find that a reasonableobserver would conclude that apparent bias was present on the face of Judge de Jong'sminutes and memoranda. And contrary to the view expressed by Duffy J, there was alogical connection between Judge de Jong's apparent bias and the risk that futurejudges could be influenced by the documents. That was after all the purpose of theminute: the Judge described it as designed to "ensure this file is advanced" and because"it may be helpful to the future of this case if it is known what was actually in mymind and to briefly address each of the points raised by Courtney J". Judge de Jongexpressly accepted in his memorandum that there was "at least a slight risk" of futurejudges being influenced by the contents of his October 2018 minute.[296] Ms Chambers submitted that Duffy J was wrong to find that the fair-mindedlay observer would not consider that future judges would be influenced by thesedocuments against the Newtons.Discussion[297] We accept Ms Chambers' submission that the minute issued by Judge de Jongwas inappropriate. It is not appropriate for a first instance judge to respond to anappellate court, or to the High Court exercising its judicial review jurisdiction, byissuing a minute challenging the views expressed and conclusions reached by theHigh Court. As Duffy J said, the outcome of an appeal and the setting aside of a firstinstance decision "are not cause for judicial comment by the first instance Judge".146[298] If a Family Court judge considers that a High Court decision in judicial reviewproceedings is wrong in law, and that the error may cause systemic difficulties beyondthe particular case in question, that concern can be raised with the Principal FamilyCourt Judge. As this case illustrates, it is possible for the Family Court to pursue an146 At [53].appeal in an appropriate case. But issuing a minute responding to the High Courtdecision, with a view to influencing the future course of a case, is whollyinappropriate.[299] It was even more inappropriate to issue such a minute without hearing fromthe parties on whether that course should be adopted. We accept Ms Chambers'submission that this was inconsistent with the requirements of natural justice.[300] We agree with Duffy J that the challenged documents and the conduct ofJudge de Jong would lead a fair-minded lay observer to conclude apparent bias waspresent, in the sense that a fair-minded lay observer would apprehend thatJudge de Jong would come to future matters in this proceeding with a pre-dispositionagainst the Newtons. But as Duffy J said, Judge de Jong has disqualified himself frommaking any further determinations in this proceeding. So any issue regarding apparentbias on his part is now of historical interest only.147[301] We understand the concern expressed by the Newtons about the potential forthese documents to have some intangible influence on future decision-makers.After all, that is what they appear on their face to be intended to achieve.[302] However we agree with Duffy J that there is no real risk of such an outcome.If future judges read the challenged documents, they will do so in light of the findingsof the High Court and of this Court. It was made quite clear in the High Court, andwe agree, that there were significant defects in both the process by which the October2018 minute was produced and its content. We now make it plain that no regardwhatsoever should be had to it by any future decision-maker in this proceeding.[303] A fair-minded lay observer would understand that the observations made bythe High Court and this Court are sufficient to dissuade any future Family Court judgefrom being influenced by the challenged documents. There is no need to removedocuments from the Family Court file, or redact documents, in order to avoid improperinfluence on future decision-makers. That is not how the court record operates.A decision that forms part of the record remains on that record even if it is147 At [46].subsequently reversed. It does not matter how severe the criticisms may be of theearlier decision by the superior court that reverses it: it must nonetheless be retainedon the record. But it will be read in light of the decisions of superior courts, and subjectto them.148 That is how the legal system works. A fair-minded lay observer wouldunderstand that.[304] The Newtons' appeal from the dismissal of their third cause of action musttherefore be dismissed.[305] We add that the Family Court may of course give directions that certainmaterial on the court file should not be provided to future report writers, includingwhere that material is superseded or inaccurate. It would be inappropriate andundesirable for any of the challenged documents to be provided to any psychologistwho may be instructed to prepare a s 133 report in the future. That material could notassist the report writer, and could lead them off course.[306] The Principal Family Court Judge may also wish to take into account thehistory of this matter when allocating judicial resources to this file, to ensure that anyrisk of apparent influence on future judges by Judge de Jong's October 2018 minuteand the other challenged documents is avoided.Relief[307] Drawing together the threads of this lengthy decision, the position we havearrived at is that the first s 133 order should not have been set aside. However it wasset aside by the first High Court judgment. It was then superseded by the second s 133order. That too was set aside, this time by the second High Court judgment.148 A court of record has an inherent power to direct that offensive and objectionable material beremoved from the record. Such a power is a corollary of the court's need to act effectively anduphold the administration of justice: see Siemer v Solicitor-General [2013] NZSC 68,[2013] 3 NZLR 441 at [114]; and Siemer v Hodgson [2008] NZCA 255 at [20]–[26]. So, forexample, intemperate attacks on a judge contained in a document filed by a party, which couldhave been rejected for filing by the Registrar but was inadvertently received, may be removed:see District Court at Christchurch v McDonald [2021] NZCA 353, [2021] 3 NZLR 585 at [31].But that power does not extend to judgments, or other judicial decisions.[308] This Court has now reversed the findings of the High Court in the firstHigh Court judgment in relation to the need to ascertain the views of the childrenbefore a s 133 order is made. The direction given by Duffy J in the second High Courtjudgment that the Family Court must reconsider whether to make a s 133 orderremains appropriate. But the directions at [41] of the second High Court judgment inrelation to how that reconsideration is to take place have been overtaken by theoutcome of the appeal from the first High Court judgment. Rather, that question mustbe reconsidered in light of the reasoning in this judgment. That will require, amongother things, that the LFC exercise judgement about whether the views of the childrenshould be sought, and if so, on what topics. It will also require the judge decidingwhether to make a s 133 order to consider whether they need to be informed about thewishes of the children on any aspect of the orders they propose to make, before theyproceed to determine that question. But we emphasise that is a matter for the judge,as explained above.[309] The stay granted by the High Court in respect of the reconsideration expires onthe determination of this appeal, on its own terms. We need not make any order inrespect of that stay.Costs[310] The appeal by the Newtons from the third High Court judgment has beendismissed. Costs should follow the event in the ordinary way. The Newtons must paycosts for a standard appeal on a band A basis, with usual disbursements, to the secondand third respondents. The Attorney-General is not entitled to seek costs, pursuant tothe terms on which leave was granted to intervene.149 Similarly, the NZLS is notentitled to seek costs in respect of its intervention in that appeal.150[311] The appeal by the Family Court from the first High Court judgment hassucceeded. But the Family Court, which did not play an active role, is not entitled toan award of costs. Nor are the interveners. There is therefore no award of costs inrespect of that appeal.149 Family Court v AA, above n 103, at [22(c)].150 At [26(d)].ResultCA19/2021[312] The appeal is dismissed.[313] The appellants must pay costs to each of the second and third respondents fora standard appeal on a band A basis with usual disbursements. We certify for secondcounsel.CA50/2021[314] The appeal is allowed.[315] The proceeding is remitted back to the Family Court to determine whether, inthe current circumstances, a psychological report should be obtained under s 133 ofCOCA. In making that determination the Family Court must have regard to thisjudgment.[316] Costs in respect of this appeal are to lie where they fall.[317] We have used fictitious names to protect the privacy of the children and theparties. Section 139 of the Care of Children Act 2004 and ss 11B to 11D of theFamily Court Act 1980 apply to any report of this judgment. And there is an order inforce made in the High Court prohibiting publication of names or identifyingparticulars of the parties.151 We make an order in each of the appeals before us thatthis Court's file may not be searched by any person without the leave of a judge, whichmust be sought by written application on notice to the parties.Solicitors:Duncan Cotterill, Auckland for First and Second Appellant in CA19/2021 and First and SecondRespondent in CA50/2021Heimsath Alexander, Auckland for Second Respondent in CA19/2021Crown Law Office, Wellington for Attorney-General as IntervenerNew Zealand Law Society | Te Kāhui Ture o Aotearoa, Wellington for New Zealand Law Society asIntervener151 Second High Court judgment, above n 36, at [62].