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Court of Appeal of New Zealand |
Last Updated: 27 February 2023
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BETWEEN |
ROSS Appellant |
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AND |
FAMILY COURT AT AUCKLAND First Respondent |
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AND |
STANLEY Second Respondent |
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Hearing: |
25 October 2022 |
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Court: |
Cooper P, Venning and Palmer JJ |
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Counsel: |
Appellant in person No appearance for First Respondent No appearance for Second Respondent S P Jerebine as counsel to assist the Court |
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Judgment: |
22 February 2023 at 11.00 am |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Palmer J)
Summary
[1] The Family Court made a number of decisions in these proceedings. They included appointing counsel under s 95 of the Evidence Act 2006 to cross-examine Mr Ross’ former partner, Ms Stanley, on his behalf. Mr Ross applied for judicial review of directions given by the Family Court over some two years. Wylie J, in the High Court, held that the Family Court made no error except in one regard: that counsel did not put to Ms Stanley all the questions Mr Ross wanted put to her.[1] The High Court did not consider it appropriate to grant relief for this error. It awarded costs against Mr Ross.[2] Mr Ross appeals.
[2] We proceed on the basis that there was an error in the Family Court’s decision, as the High Court held, without determining whether the High Court’s finding was correct. However, any such error did not warrant a rehearing being ordered. If counsel had sought to put to Ms Stanley the questions Mr Ross wanted put, some of which could be considered abusive, a good many of them may well have been ruled out by the presiding judge. It is most unlikely that answers to any of his questions would have led to a different outcome. And a rehearing would not be in the best interests of the child. We dismiss the appeal against the substantive decision. We also dismiss the appeal against the costs award and similarly award costs against Mr Ross.
What happened?
[3] Mr Ross and Ms Stanley have been involved in Family Court litigation over many years, since 2009, including in relation to their child, C. In 2011, the Family Court made a final parenting order, under s 48 of the Care of Children Act 2004 (COCA), providing for shared parenting.[3] From 2017 to 2020, both parents made various applications to vary the parenting order. The Family Court made various directions and decisions in relation to these applications. In one of these, on 9 September 2019, Judge B R Pidwell was satisfied that s 95 of the Evidence Act 2006 was triggered and appointed counsel to assist to conduct cross-examination on behalf of Mr Ross.[4]
[4] Section 95 states, relevantly:
...
(2) In a civil or criminal proceeding, a Judge may, on the application of a witness, or a party calling a witness, or on the Judge’s own initiative, order that a party to the proceeding must not personally cross-examine the witness.
(3) An order under subsection (2) may be made on 1 or more of the following grounds:
...
(d) the nature of the proceeding:
(e) the relationship of the witness to the unrepresented party:
(f) any other grounds likely to promote the purpose of the Act.
...
(5) A defendant in or party to a proceeding who, under this section, is precluded from personally cross-examining a witness may have that defendant’s or party’s questions put to the witness by—
(a) a lawyer engaged by the defendant or the party; or(b) if the defendant or the party is unrepresented and fails or refuses to engage a lawyer for the purpose within a reasonable time specified by the Judge, a person appointed by the Judge for the purpose.
(6) In respect of each such question, the Judge may—
(a) allow the question to be put to the witness; or(b) require the question to be put to the witness in a form rephrased by the Judge; or
(c) refuse to allow the question to be put to the witness.
...
[5] Following the substantive hearing on 9 and 10 July 2020, Judge J G Adams issued three judgments:
(a) the substantive judgment on 20 July 2020;[5](b) a judgment declining Mr Ross’ application for a partial rehearing on 17 August 2020;[6] and
(c) a judgment that dismissed Ms Stanley’s application to prevent Mr Ross from bringing further proceedings and that awarded costs against him.[7]
[6] Mr Ross applied for judicial review to challenge four Family Court directions, the impartiality of one Family Court judge and the three judgments issued by Judge Adams. The first and second respondents, the Family Court at Auckland and Ms Stanley, abided by the decision of the High Court and do the same in this Court. To provide a contradictor, Ms Jerebine was appointed to act as counsel to assist in the High Court, as she has been in this Court.
[7] On 9 December 2021, the High Court held there was no reviewable error in the four Family Court directions,[8] and there was nothing in Mr Ross’ assertions of bias and no objective basis for them.[9] In relation to the judgments, Mr Ross had submitted that the Family Court failed to apply section 95(6) of the Evidence Act because it did not direct counsel to ask questions which Mr Ross wanted put to her.[10] It appears counsel asked the questions they considered the Family Court would allow to be put. The High Court:
(a) adopted the High Court’s interpretation of s 95 of the Act in Irvine v Irvine, that the unrepresented parties’ questions are required to be put;[11](b) accepted that the Family Court had erred in failing to appreciate the ambit of s 95;[12] and
(c) was not persuaded it was appropriate to grant relief to Mr Ross, for six specified reasons.[13]
[8] On 17 December 2021, the High Court declined an application by Mr Ross to recall the judgment.[14] On 15 February 2022, the Court awarded costs against Mr Ross, as explained in more detail below.[15]
[9] Mr Ross appeals. He amended his claim for relief at the hearing to seek that the three Family Court judgments (on the substantive claim, refusing to grant a rehearing and costs) and the High Court judgments on the judicial review and costs, be set aside. He initially asked this Court to substitute its decision for that of those courts and to alter an agreement on parenting arrangements. In his supplementary submissions he asked that the Court set aside Judge Adams’ decision and direct the parties to attend family dispute resolution.
[10] Before the hearing, Goddard J determined for this Court an application by Mr Ross to adduce further evidence on appeal, which included granting leave to Mr Ross to adduce the questions he wished counsel to put to Ms Stanley.[16] Mr Ross sought leave to adduce further evidence following that decision, particularly of events arising after the High Court hearing, in his further affidavit of 20 October 2022. We do not consider that is relevant and decline to admit it.
[11] Mr Ross suggested at one point that we may need further assistance from the lawyer for the child. We do not consider that is necessary in the circumstances of this appeal. At the end of the appeal hearing, we granted Mr Ross leave to file further brief submissions, which he did and which we have considered. On 26 October 2022, he then sought leave to file yet further submissions. We dismiss that application and note that the submissions would not alter our conclusions in any case.
Should relief have been granted?
[12] At the hearing, Mr Ross focussed on the High Court’s six reasons not to grant relief. Given that, we proceed on the basis that there was an error in the Family Court’s decision as the High Court held, without determining whether the High Court’s finding was correct in Irvine v Irvine.[17] Mr Ross submitted that he was not asking the Court to rethink s 95 of the Evidence Act. We agree this is not the case to further explore the parameters of s 95 and whether Irvine v Irvine was correctly decided. We examine each of the six reasons in turn.
[13] The High Court’s first reason for declining relief was:[18]
I do not know what questions Mr Ross wanted put to Ms Stanley. The lists of questions have not been put in evidence by Mr Ross. Notwithstanding the limited role of counsel appointed, it may have been that the Judge would either have required that the questions be rephrased or refused to allow them to be put to Ms Stanley pursuant to s 95(6);
[14] Mr Ross submits the questions would have been put because they were cogent, relevant and in the best interests of the child. The Judge was wrong to refuse relief on that ground.
[15] On appeal, we have had the benefit of seeing the 331 questions Mr Ross wanted put to Ms Stanley. Some of them, regarding the proposed parenting arrangements, her view of the child’s welfare and interests and her understanding of the child’s the views of the parents, were relevant and were put to Ms Stanley. Others were irrelevant to the issues at the hearing: the questions about the veracity of allegations by Ms Stanley of abuse by Mr Ross, resistance to co-parenting by Ms Stanley and Ms Stanley’s partner’s use of her phone and the internet. Some of the questions appear designed to be intimidatory and abusive and to justify Mr Ross’ frustrations. To give just one example, the following series of questions, which counts as only one of the 331 questions, was:
a. But it isn’t really abuse by [Mr Ross] is it?
b. You would accept your behaviour is frustrating for him?
c. You would accept your behaviour is disappointing to him?
d. You would understand why he reacts frustrated and/or disappointed?
...
[16] Such questions were inappropriate and irrelevant to the issues in the case. Mr Ross’ submission before the High Court that he wanted to have all the questions put to Ms Stanley to make her “lose control” and show her true demeanour reinforces that.[19] Overall, the majority of the questions are not cogent, relevant, or in the best interests of the child. Accordingly, it is highly likely that the Family Court would not have allowed all of the questions to have been put to Ms Stanley in the form they were in. The High Court was correct.
[17] The High Court’s second reason for declining relief was:[20]
The Judge broadly concluded that both Ms Stanley and Mr Ross were capable parents. He did not consider that C was unsafe in Mr Ross’ care. Rather, he considered that Mr Ross evinced a strong need to be in control, as demonstrated by the various documents he had filed over the preceding decade, which the Judge considered showed a “pervading lack of perspective”;
[18] Mr Ross submits that, if his questions were asked, the Family Court would have concluded it is Ms Stanley who has control issues. He also criticises the High Court’s use of “broadly” in the above passage as inconsistent with examining the best interests of the child “in his or her particular circumstances” under s 4(1) of COCA.
[19] First, such questions are likely not to have been allowed to be put, as explained above. Second, whether either parent wanted more or less control in these circumstances is not relevant to the welfare of the child, the quality of the child’s relationship with the parents, or the interests of the child in the arrangements at issue. Third, having now seen the questions, we consider Mr Ross is wrong about who the Family Court would have thought had control issues if they had been asked. Fourth, in using the word “broadly”, the High Court was referring to its summary of the Family Court’s findings, not characterising its approach to s 4(1) of COCA. Broadly, the High Court’s point was that both Mr Ross and Ms Stanley were capable parents and the answers to the questions were unlikely to change that conclusion. Having seen the questions, we consider that was correct.
[20] The High Court’s third reason for declining relief was:[21]
While the Judge’s findings were adverse to Mr Ross, it is not apparent from his judgment that those findings were based on the views he formed of Ms Stanley. His focus throughout his judgment was on the welfare and best interests of C. This was entirely appropriate and in accordance with the statutory mandate;
[21] Mr Ross submits that the Family Court applied the wrong legal test, or put an incorrect gloss on the statute, because the Judge used the term “care and control” six times.
[22] We do not consider the Family Court erred. The Judge took the child’s views into account and treated the child’s welfare and best interests as the paramount consideration. Furthermore, we consider the High Court was correct that the Family Court’s findings were not based on the views it formed of Ms Stanley. Indeed, Ms Stanley expressed positive views of Mr Ross’ parenting and relationship with the child. We do not consider the High Court erred either.
[23] The High Court’s fourth reason for declining relief was:[22]
The findings the Judge made adverse to Mr Ross were based on the Judge’s assessment of the materials filed with the Family Court by Mr Ross, including his submissions and his evidence, as well as from independent sources, in particular, a report prepared for the Court by a psychologist, Dr Calvert. It is not clear that, if Mr Ross’ questions had been put to Ms Stanley, this would have altered the Judge’s view of Mr Ross;
[24] Mr Ross submits Dr Calvert’s report is 12 years old and of little relevance. He submits the Family Court cherry-picked three comments from it.
[25] We do not consider that is a fair characterisation of the Family Court’s judgment. The Judge assessed the evidence before him, including the views Mr Ross expressed in the hearing, in reaching his findings — including the finding that Mr Ross tends to see things only from his own perspective and lacks a wider perspective. We agree that the evidence supports that conclusion. Putting questions to Ms Stanley would not affect that because she could only provide her perspective of Mr Ross’ behaviour or attitudes, which would be unlikely to be exculpatory. Indeed, the questions Mr Ross wanted put to Ms Stanley would likely reinforce the Family Court’s conclusions. In any case, as the High Court said in its second reason, the Family Court also considered Mr Ross was a capable parent and the child was not unsafe in his care.[23] The Family Court found the child loves both parents and the child’s psychological safety is well-managed by the current arrangement.[24] The High Court reasoning was sound.
[26] The High Court’s fifth reason for declining relief was:[25]
Setting the judgment aside and sending the matter back for rehearing would not be in C’s best interests;
[27] Mr Ross’ submission that the High Court applied a broad approach contrary to s 4(1) of COCA is relevant here as well. He submits the Judge gave no reason or explanation for this finding and the particular circumstances of the child were not considered. He further submits that reports for the child were not read or, at least, a key page was not read. Mr Ross maintains that a rehearing was in the best interests of the child in August 2021, so that the most appropriate arrangements could be made for the child. At the end of his submissions in this Court he also said he was not submitting that a rehearing in the Family Court litigation is now in the best interests of the child.
[28] We consider it is clear that, based on all the evidence of the particular circumstances of the child here, a further rehearing revisiting these issues again was not and still would not be in the child’s best interests. A Court does not have to refer to all documents in its judgment. But the Family Court judgment refers to key points from the page Mr Ross says was not read, which was before Wylie J.[26] The documents Mr Ross complains were not read do not suggest a further rehearing would be in the interests of the child.
[29] The High Court’s sixth reason for declining relief was:[27]
The Judge’s substantive decisions were open to appeal pursuant to s 143 of the Act. Those appeal rights were appropriate to protect the interests Mr Ross claimed. Where wide-ranging appeal rights are available, they ought to be pursued rather than an application made for judicial review.
[30] Mr Ross submits he did not appeal because he considered a full de novo hearing was required, which would not happen on appeal, and judicial review would result in a further de novo hearing. He chose to apply for a rehearing rather than to appeal. He did not want to be put to the expense and inconvenience of seeking leave to appeal out of time. And there would be no difference in relief.
[31] Section 143(2) of COCA requires an appeal to be brought within 20 days. Mr Ross’ application for judicial review was made three and a half months after the decision. Such a delay, combined with him not pursuing the appeal, is not determinative of, but counts against, relief in judicial review proceedings. There is a difference in the relief available by way of appeal and review. An appeal is by way of rehearing so, on appeal, the court can remake the decision itself rather than just send it back to the original decision-maker. The High Court did not err.
Other claims
[32] Mr Ross also makes other submissions, which do not affect our conclusions. In particular:
(a) First, although he stated at the hearing he would not push it, Mr Ross submits the High Court was wrong to hold that the s 46R proceedings were extant.[28] That is not relevant to the reasons for not ordering a rehearing and is not a reason for overturning the High Court decision even if Mr Ross is correct, which we do not need to determine.(b) Second, he submits the High Court acted irrationally and unreasonably in declining to grant relief. There is no foundation for this claim. The Judge was correct, as we explain above.
(c) Third, he submits the omission of a standard clause invoking s 16(5) of the COCA, in the parenting order made by Judge Adams, was unorthodox, contrary to the spirit of the Act, and ought to be discharged. But the omission of the clause does not affect the application of s 16(5) and, as Mr Ross acknowledges, it does not make the order invalid.
Should Mr Ross pay costs?
[33] In the High Court’s costs judgment, the Judge:
(a) Invoked s 178 of the Senior Courts Act 2016 which, when a person appears as counsel to assist the Court in any civil proceeding, empowers the court to make any order it thinks just for the payment by any party of the costs incurred by the person assisting.[29](b) Traversed the various efforts judges had made to have Mr Ross clarify and narrow his proceedings, which he resisted and in relation to which he filed excessively lengthy submissions.[30]
(c) Noted that the proceedings did not concern matters of public interest, that many of the decisions with which Mr Ross took issue were historic and had become academic, that there had been delay and that alternative remedies were open to him.[31]
(d) Said:
[13] It is hard to escape the conclusion that Mr Ross was engaged in something of a crusade. He considers that there are problems with the Family Court and he refused throughout to entertain the possibilities either that he might be wrong or that even if he was right, it made no difference to his case. In my judgment, it is appropriate to order that Mr Ross pays costs as the unsuccessful party and notwithstanding that Ms Jerebine appeared as counsel assisting rather than a party. The public purse should not be used to accommodate Mr Ross’ intransigence or to fund his crusade.
(e) Ordered costs on a 2B basis against Mr Ross, and in favour of Ms Jerebine as counsel assisting (to be paid to the Crown if she had already been paid out of the public purse) in the sum of $11,113.50 in respect of the substantive proceedings and $3,585 in respect of an application for recall.[32]
[34] We have upheld the High Court’s substantive decision. Costs usually follow the event and there no reason for them not to do so here. Ms Jerebine advised Mr Ross before the High Court hearing that she would be required to seek costs in the event his claim failed.[33] The High Court was entitled to order costs under s 178 of the Senior Courts Act for the reasons it gave. Accordingly, we dismiss the appeal against the costs judgment as well. For the same reasons, we award costs against Mr Ross on the same basis, as sought.
Result
[35] The applications by Mr Ross to adduce further evidence and to file further submissions are dismissed.
[36] The appeals are dismissed.
[37] Costs are awarded against Mr Ross for a standard appeal on a Band A
basis, in favour of the Crown (on the assumption Ms Jerebine
was paid by the
Crown).
Solicitors:
Crown Law Office | Te Tari Ture o
te Karauna, Wellington for First Respondent
[1] Ross v Family Court at Auckland [2021] NZHC 3204 [High Court judicial review judgment]. The names of the parties were anonymised in the High Court to protect the identity of the child. We use the same names used there, for the same reasons.
[2] Ross v Family Court at Auckland [2022] NZHC 185 [High Court costs judgment].
[3] [Ross] v [Stanley] FC Auckland FAM-2009-090-789, 30 May 2011 at [22].
[4] [Ross] v [Stanley] FC Waitākere FAM-2009-090-789, 9 September 2019 at [8(f)].
[5] [Stanley] v [Ross] [2020] NZFC 5684 [Family Court substantive judgment].
[6] [Stanley] v [Ross] [2020] NZFC 6911.
[7] [Stanley] v [Ross] [2020] NZFC 9436 [Family Court costs judgment]. The High Court subsequently upheld an appeal against the quantum of the costs in Ross v Stanley [2021] NZHC 1125.
[8] High Court judicial review judgment, above n 1, at [39], [55], [60] and [65]. The judgment was re-issued, with further anonymisation, on 9 December 2021.
[9] At [68] and [71].
[10] At [74].
[11] At [79]–[80], citing Irvine v Irvine [2021] NZHC 2269 at [23]–[24] and [26].
[12] At [85].
[13] At [86].
[14] Ross v Family Court at Auckland [2021] NZHC 3518.
[15] High Court costs judgment, above n 2.
[16] [Ross] v Family Court at Auckland [2022] NZCA 146.
[17] Irvine v Irvine, above n 11.
[18] High Court judicial review judgment, above n 1, at [86(a)].
[19] At [77].
[20] At [86(b)].
[21] At [86(c)].
[22] At [86(d)].
[23] At [86(b)]; and Family Court substantive judgment, above n 5, at [28].
[24] Family Court substantive judgment, above n 5, at [29].
[25] High Court judicial review judgment, above n 1, at [86(e)].
[26] Family Court substantive judgment, above n 5, at [8].
[27] High Court judicial review judgment, above n 1, at [86(f)] (footnotes omitted).
[28] At [12].
[29] High Court costs judgment, above n 2, at [9].
[30] At [11].
[31] At [12].
[32] At [15] and [17].
[33] [Ross] v Family Court at Auckland CIV-2021-404-92, 26 May 2021 at [13].
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