SJH v Family Court at Waitakere [2018] NZHC 2186 (24 August 2018)

Last Updated: 5 October 2018

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1091 [2018] NZHC 2186

IN THE MATTER	of an application for judicial review under the Judicial Review Procedure Act 2016
BETWEEN	SJH Plaintiff
AND	FAMILY COURT AT WAITAKERE First Defendant BRR Second Defendant

Hearing:	10 August 2018
Counsel:	JM Gandy for plaintiff ST Bennett and AC Meates for second defendant
Judgment:	24 August 2018

JUDGMENT OF FITZGERALD J

_{[Judicial review of decision made at Family Court directions conference]}

This judgment was delivered by me on 24 August 2018 at 2 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date...............

Solicitors: Thomas & Co, Auckland

Greg Presland, Auckland

SJH v Family Court at Waitakere [2018] NZHC 2186 [24 August 2018]

Introduction

[1] The applicant and second respondent are separated, but together have a daughter who is four. I will refer to her as “H”. The applicant obtained a without- notice interim parenting order from Judge Brandts-Giesen (acting as e-Duty Judge) in the Family Court at Waitakere on 15 March 2018. On 2 May 2018, Judge Whitehead discharged that order. The applicant seeks to judicially review Judge Whitehead’s decision to discharge the earlier order, saying it was ultra vires, in breach of natural justice and failed to take into account mandatory considerations.

Background to the order

[2] On 18 October 2016, the applicant obtained an interim parenting order against the second respondent. The applicant was to have primary custody of H, with the second respondent entitled to contact supervised by a Family Court appointee.

[3] The order of 18 October 2016 was varied by agreement at a directions conference held on 21 November 2016. The variation allowed the second respondent contact while supervised by her parents (H’s maternal grandparents).

[4] On 27 April 2017, a hearing was convened in the Family Court. Issues as to temporary care were agreed by consent. The parties agreed to discharge the earlier orders. Shared care arrangements were put in place allowing for contact from the second respondent. H was to be in the applicant’s care at other times. Directions were made for a report under s 133 of the Care of Children Act 2004 (“Act”).

[5] A further directions hearing occurred in November 2017.

[6] On 1 December 2017, the s 133 report was released. It raised concerns as to the second respondent’s parenting of H and said that “risk factors exist for [H] in the current circumstances.” It recommended the second respondent undertake a mental health assessment, and concluded that “decisions as to care arrangements for [H] might best be considered when the outcome of the mental health assessment and any treatment that might follow from that assessment is known.”

[7] On 15 March 2018, the applicant applied to the Family Court for a without- notice interim parenting order. In his affidavit in support, the applicant referred to the concerns raised in the s 133 report, and addressed more recent events (of early March

2018) that in the applicant’s view gave rise to the need to revert to the orders put in place on 21 November 2016 (see [3] above). Those issues included concerns arising during the course of the second respondent dropping H off at her pre-school, and the pre-school’s subsequent decision that the second respondent should not continue to drop off or pick up H from pre-school in the future.

[8] Counsel’s memorandum filed in support of the without notice orders noted that the second respondent had recently filed an application to enforce the provision of an existing parenting order for Facetime contact, and had arranged for an independent psychiatric assessment to be undertaken as contemplated by the s 133 report writer. The memorandum also noted that counsel for the second respondent and lawyer for the child had been provided with copies of the application. That is not in dispute. In effect, therefore, the application proceeded on a “Pickwick” basis.

[9] Ms Bennett, appearing for the second respondent, attached to her submissions in opposition to the present application for judicial review email correspondence between herself and Mr Gandy (counsel for the applicant) on 15 March 2018, very shortly before the without notice application was filed.¹ Mr Gandy had put Ms Bennett on notice of the application and noted that copies of the papers would be “supplied shortly”. In response, Ms Bennett confirmed that the second respondent had undergone the independent psychiatrist’s assessment and stated that “[the psychiatrist] does not hold the safety concerns that are apparently held by your client or by the [s 133] report writer”. This advice was, it seems, only 10 or so minutes before the papers were filed. In the event, the formal psychiatrist’s report was not available until

10 April 2018, some time after the applicant’s without notice application was filed.

[10] Neither the second respondent nor lawyer for the child took any steps to appear on or otherwise challenge the application proceeding on a without-notice basis.

¹ This material ought to have been put into evidence via an affidavit in the ordinary way. Mr Gandy did not, however, object to it being produced at the hearing. I accordingly granted leave for the material to be filed and relied upon in the application for judicial review.

[11] The orders sought by the applicant were granted by Judge Brandts-Giesen later that day. The basis of the orders was the second respondent’s reported conduct, and that the “psyc report considers that a full assessment of the respondent’s mental health is needed and that child is at risk under the present arrangements”. The Judge ordered a reversion to the care arrangements that had been agreed in October 2016 and implemented on 21 November 2016. That is, H was to be under the primary care of the applicant and the second respondent was to have contact under the supervision of H’s maternal grandparents.

[12] Judge Brandts-Giesen’s memorandum of 15 March 2018 directed a (with notice) hearing pursuant to r 416J(2)(a) of the Family Court Rules 2002, and directed the Registrar to allocate a directions conference prior to the hearing pursuant to r 416U(2). The Judge fixed the time for the second respondent to file a statement of response at seven days from the date of the memorandum. Ms Bennett and Mr Gandy confirmed at the judicial review hearing that that timeframe was met. That is relevant as if it had not been filed within that period, then the applicant’s application would have been able to be heard and determined at the directions conference.²

[13] A notice of directions conference was duly distributed by the Family Court on

16 March 2018. It noted that a 15-minute directions conference on the application was to take place on 2 May 2018.

[14] The second respondent filed the psychologist’s report referred to earlier, along with an affidavit, with the Family Court on 10 April 2018.

[15] On 27 April 2018, the second respondent’s counsel filed a memorandum noting the forthcoming directions conference. She sought an urgent hearing on interim contact arrangements. The memorandum referred to the applicant’s without-notice application (and orders) and stated:

... [the applicant’s] application to vary the orders of 27 April 2017 is problematic because orders were made without reference to recommendations by lawyer for the child and relied heavily on the s 133 report writer’s query about mental health issues when an independent expert had assessed there to be no underlying mental health issues for [the second respondent]. The

² Family Court Rules 2002, r 416Z(3)(a).

variation order now provides for more changeovers for the parties and is unworkable given the level of conflict between the parties and the stress that it is putting upon the young child.

It is submitted that there ought to be an urgent hearing on the issue of interim contact. Counsel respectfully submits that pending the allocation of a short cause hearing regarding interim contact that it would be useful if lawyer for child could convene round table meeting to explore consensus on this issue.

[16] A memorandum was filed by lawyer for the child on 30 April 2018. She supported a return to the care arrangements that had been agreed on 27 April 2017, on an interim basis until the substantive matter was set down for a hearing. Her memorandum further noted that “where this cannot be agreed to by consent, there be an urgent interim contact hearing to determine the interim parenting arrangements for this child”. The memorandum concluded that “until the substantive hearing the interim parenting arrangements to be determined either by consent or by an urgent interim contact hearing”.

[17] The directions conference took place on 2 May 2018. A transcript of the hearing is available and has been produced for the purposes of the judicial review application. Neither the applicant nor his counsel, Mr Gandy, were present. The Judge was informed by counsel for the second respondent, Ms Bennett, that Mr Gandy had been travelling from New York and that his office had not been able to contact him, but that she had agreed some directions with Mr Gandy’s colleague. Ms Bennett also noted her request for an urgent hearing on this issue of interim contact. Her submissions were clearly premised on the basis that it was not anticipated — by any party — that the directions conference would serve as the interim contact hearing.

Ms Bennett submitted that a half day hearing would be required for that purpose.

[18] The Judge proceeded to hear further from counsel for the second respondent and Ms Meates, lawyer for the child. Part way through that discussion the following exchange occurred:

THE COURT: As I understand it, the duty Judge made an order based on insufficient information.

MS MEATES: That’s right.

THE COURT: As far as I can tell.

MS MEATES: Yes, Sir.

THE COURT: That he was not aware that when he made the orders, which weren’t sought even, that the mother had or was undergoing a psychiatric assessment.

MS MEATES: That’s right, Sir.

THE COURT: Which was the crux of the substantive hearing.

MS MEATES: Yes Sir.

THE COURT: And the net result is that report is now in which indicates that [the second respondent] ... is more than capable of caring for the child.

...

THE COURT: Has there been any discussion with the applicant or Mr Gandy notwithstanding that he’s been in New York, as to a reversion to the 27 April 2017 order?

MS MEATES: Well that’s what has been, what I’m seeking.

THE COURT: That’s right.

MS MEATES: Mr Gandy is away and it has been proposed there be a round table meeting around that. I guess my view on it is, if it is not agreed to, we’re in exactly the same position and it’s just another week and of course Mr Gandy’s client has been very reticent about attending a round table conference now for some time but it’s my submission the previous order should apply for this child until the matters are heard.

THE COURT: The order of the 27^th of April?

MS MEATES: The 27^th of April which was reached by consent.

THE COURT: Sorry, I might be confusing myself. Judge Brandt—

MS MEATES: Sir, have you got lawyer for the child’s report that I’ve filed dated the 30^th of April?

THE COURT: Yes, I’ve received that.

MS MEATES: The Judge, the reversion was to the interim parenting order of the 19^th of October.

THE COURT: So he reverted back to that order?

MS MEATES: Yes.

THE COURT: Was he given any opportunity to amend that again?

MS MEATES: No, he hasn’t.

THE COURT: He hasn’t?

MS MEATES: No.

THE COURT: You see I would have thought there would have been—

MS MEATES: What often happens is that lawyer for the child has 24 hours to report back to the Court especially when it’s under, been before the Court for some time, but...

THE COURT: You see, in my view, if that application that was first made has omitted relevant information which means that the order would not have been made if it had been received.

MS MEATES: No.

THE COURT: Allows this Court today to overturn that e-duty Judge’s ruling.

MS MEATES: Well then, Sir, if you have that, my submission is that that should be done and for the welfare of the child to go back to matters as they were which had been agreed by consent.

THE COURT: Which was agreed—

MS MEATES: Was agreed, yes.

THE COURT: —Until those orders were made.

MS MEATES: That’s right, Sir, yes.

THE COURT: I am minded to do that.

MS MEATES: Well, Sir, I’d be very grateful if you did because the process of trying to get something changed when it clearly affects a child in this way is substantial.

THE COURT: Yes, I totally agree.

MS MEATES: Yes.

THE COURT: And it would take months perhaps to even get an interim hearing on the issue.

MS MEATES: That’s right, yes.

THE COURT: And it seems to me to be a waste of everybody’s time.

MS MEATES: Yes.

THE COURT: If we are seeking a substantive hearing as well.

MS MEATES: Yes, sir.

THE COURT: Virtually on the same issues I would imagine.

MS MEATES: They’re exactly the same issues, yes.

THE COURT: Well let’s see if I can make some sense of this.

[19] The Judge then delivered an oral minute. The minute stressed that the earlier order (of 27 April 2017) had been made by consent, but the variation made on a without-notice basis. The Judge recorded the basis on which the applicant had sought the variation, and said:

[4] ... What was not disclosed in that application on a without notice basis to the e-duty platform was that the mother had already to the knowledge of both parties proceeded with a psychiatric assessment and that assessment is now on the file and incorporated into an affidavit dated 10 April 2018.

[5] It is unfortunate this information was not made available to the e-duty Judge who I am satisfied would not have made the orders that had been made if he was aware of that situation as the substantive proceedings were well underway, lawyer for child was involved, a psychiatric assessment of the mother was underway as was considered appropriate.

[6] In those circumstances, we are now faced today with a directions conference where a response has been filed, no appearance of the applicant or his counsel, although I am told that Mr Gandy has just returned from New York as of yesterday and may well be indisposed and that means if I allocate today an interim hearing on this issue it could be months before it could be heard even if it was only for two to four hours.

[20] These considerations satisfied the Judge that the without notice order made on

15 March 2018 should be discharged. He accordingly reinstated the care arrangements that had been in place under the 27 April 2017 order.

Submissions on the judicial review application

[21] The applicant raises three grounds of judicial review, which may be summarised as:

(a) Illegality: By discharging an order without an appearance from the applicant the Court exceeded the limitations in the Family Court Rules

2002 and the order was ultra vires.

(b) Breach of natural justice: The applicant had a legitimate expectation that a hearing would be allocated to determine the issues and the applicant was denied an opportunity to be heard and present submissions.

(c) Mistake of fact and failure to take into account relevant considerations: The Judge’s order was premised on Judge Brandts-Giesen not being aware that the second respondent was undertaking a psychiatric evaluation, but this was disclosed in the without notice application. The Judge also failed to have regard to the reasons the without-notice interim order was sought in the first place.

[22] The second respondent submits that the Judge did have jurisdiction to make the order in the absence of the applicant or his counsel. Reliance is placed on r 55 of the Family Court Rules, which states:

55 Procedure if some or all parties do not appear

(1) If no party appears, the court may dismiss the application.

(2) If the applicant appears but no other party appears, the applicant may proceed to establish the grounds on which he or she claims to be entitled to the order or declaration sought.

(3) If the applicant does not appear but another party appears and opposes

the application, the court may—

(a) adjourn the hearing; or

(b) dismiss the application.

(4) Subclause (3) does not apply to a person to whom rule 42 applies.

[23] In any event, the second respondent argues there has been no miscarriage of justice because a substantive hearing regarding final parenting orders has been scheduled for 19 November 2018. Further, it is submitted the Judge’s orders were consistent with the purpose and spirit of the resolution of family law disputes. Rule 3(1) of the Family Court Rules states:

(1) The purpose of these rules is to make it possible for proceedings in

Family Courts to be dealt with—

(a) as fairly, inexpensively, simply, and speedily as is consistent with justice; and

(b) in such a way as to avoid unnecessary formality; and

(c) in harmony with the purpose and spirit of the family law Acts under which the proceedings arise.

[24] The second respondent submits that the Judge’s approach was also consistent with the overriding principles in s 4 of the Act, under which a child’s welfare and best interests are to be paramount.

[25] Ms Bennett responsibly acknowledges that when the variation order was sought from the e-duty Judge, the Court had been informed by counsel that the second respondent was undertaking a psychiatric assessment. However, it is submitted that counsel for the applicant did not at that time disclose the communications between counsel on 15 March 2018, which concerned the outcome of the assessment. It is submitted that if the Judge had known the “proximity to the filing of a favourable independent assessment” then the without-notice order may not have been made.

Analysis

[26] All proceedings in the Family Court are brought under the Family Court Rules, unless an Act of Parliament states otherwise.³ The matter came before Judge Whitehead at a directions conference,⁴ which is governed by r 416Z of the Rules. It states:

416Z Directions conference

(1) The purpose of a directions conference is to enable a Judge to make the orders and give the directions that are necessary to ensure that the hearing takes place as early as possible and will enable the determination of the issues in dispute between the parties.

(2) At the conclusion of a directions conference, unless subclause (3)

applies, the Judge— (a) must—

(i) settle the issues to be determined at the hearing; and

(ii) identify any witnesses who are required for cross- examination; and

(iii) approve a timetable for filing and serving any further evidence; and

(b) may require the applicant to prepare and file an agreed bundle of documents (which must be paginated) and direct that the

³ Family Court Rules 2002, r 5(1).

⁴ As ordered in the without-notice orders dated 15 March 2018.

costs of preparing that bundle be shared equally between the parties.

(3) If no respondent (being a person who has been served with the application and required to attend the conference) has filed a notice of response within the required time,—

(a) the Judge may treat the conference as a hearing and may determine the application at that time; and

(b) if a respondent attends the conference, rule 42 (which sets out when a respondent may be heard) applies as if the conference were a hearing.

(4) If it appears that some or all of the issues in dispute can be determined by way of a submissions-only hearing, the Judge must direct that a submissions-only hearing be held (see rule 416ZG).

(5) If the proceedings are on the without notice track, the period between the directions conference and any subsequent hearing must, where reasonably practicable, be not more than 3 weeks.

(Emphasis added)

[27] As can be seen from r 416Z(1), the purpose of a directions conference is clear, namely to progress the matter to a substantive hearing to enable determination of the issues between the parties. Where the proceeding is on the without-notice track, as in this case, that hearing is also, where reasonably practicable, to take place within three weeks of the directions conference.⁵

[28] Ultimately, I have reached the conclusion that the Judge made a procedural error in making the orders he did at the directions conference held on 2 May 2018. I say this for the following reasons.

[29] First, the conference was clearly to be a directions conference only. That was made clear by the orders made by the e-Duty Judge on 15 March 2018, as well as the subsequent notice sent out to the parties notifying them of the date and purpose of the conference.

⁵ The reference to r 42 in subsection (3) is not presently relevant, as that rule relates to non- compliance with r 41. Both rules are directed at the filing of notices of defence and notices of intention to appear at a hearing, but not a directions conference. That is also the effect of r 55 (i.e. concerning hearings, not directions conference).

[30] It was also all parties’ understanding of the nature and purpose of that conference. As noted above, both Ms Bennett’s and Ms Meates’ memoranda filed in advance of the conference proceeded on the basis that if interim contact arrangements could not be agreed, an urgent interim contact hearing would be required, to revisit the orders made on 15 March 2018. That was also the effect of Ms Bennett’s discussions with Mr Gandy’s colleague, as reported to the Judge at the directions conference — namely that directions to that effect had been agreed between counsel. Those agreed directions were not, however, explored at the conference. Ms Bennett also noted at the directions conference that a half day hearing was required for the interim contact hearing. That is consistent with important matters of substance needing to be determined and the parties having an opportunity to be heard on them, rather than being determined at a (brief) directions conference in the absence of one of the primary parties.

[31] Second, pursuant to r 416Z(5), the period between the directions conference and any subsequent hearing must, where reasonably practicable, be not more than three weeks. Both Mr Gandy and Ms Bennett responsibly acknowledged at the judicial review hearing that that timeframe is, in practice, optimistic. Nevertheless, the Rules envisage a hearing of that nature taking place promptly following a directions conference (where the proceedings are on the without-notice track). Given the approach taken at the directions conference in this case, however, no such hearing has yet occurred.

[32] Third, it is not evident on the face of the record (including the transcript of the directions conference), or the Judge’s minute itself, that the Judge had available to him, or if so took into account, the material filed for and on behalf of the applicant with his without-notice application. Before revisiting the orders made on 15 March

2018, it would have been appropriate to have reviewed and considered that material. In this context, Mr Gandy’s memorandum had informed the e-Duty Judge that substantive proceedings were underway and that the second respondent was undertaking a psychiatric assessment, which is not reflected in the Judge’s minute.

[33] Fourth, I do not accept Ms Bennett’s submission that the Judge had the power pursuant to FCR 416Z(3)(a) to turn the directions conference into a hearing because

the second respondent’s own application was the subject of that conference and the applicant’s response had not been filed within the required period. The conference had been allocated for the purpose of making directions leading to an on notice hearing of the applicant’s application, as reflected in the without notice orders made on

15 March 2018.

[34] Further and in any event, even if the provisions of FCR 416Z(3)(a) been triggered, for reasons of natural justice, I would have nevertheless concluded that the Judge erred in a procedural sense in proceeding as he did to make substantive orders in the applicant’s absence. As already noted, all counsel and the Judge were aware that the applicant and his counsel were not going to be appearing at the directions conference, given the delays in Mr Gandy’s return from overseas; and further, that

Ms Bennett and Mr Gandy’s colleague had agreed directions leading to an on notice hearing.

[35] Fifth, the consequences of not providing the applicant or his counsel with the opportunity to be heard on the substantive orders made are highlighted by the fact that a key aspect of the Judge’s reasoning for making the orders he did was his understanding that there had been non-disclosure in the applicant’s without notice application. However, as noted above, this was in error. While it could be argued that the application should have also disclosed that a matter of minutes prior to the papers being filed, Ms Bennett had put Mr Gandy on notice that the second respondent’s assessment had been completed and was understood to be favourable, these are questions of degree on which the applicant ought to have been heard prior to the earlier without notice orders being altered. Further, the psychologist’s report itself was not available until well after the applicant’s without-notice application, namely in April

2018.

[36] Sixth, it also seems that the Judge was unaware the applicant’s without-notice application (and supporting papers) had in fact been copied to both Ms Bennett and Ms Meates at the time it was filed. Mr Gandy noted that neither the second respondent nor lawyer for the child took any steps in response over the period 15 March 2018 to

2 May 2018, including steps he submits were available to them pursuant to r 34 of the

Family Court Rules and s 56 of the Act. There was some debate at the hearing as to

whether those steps, and in particular, those pursuant to r 34, were open to the second respondent.⁶ Whether this approach, on an effective “Pickwick” basis, would have influenced the Judge in making the orders he did is unknown. But the point remains that these are additional matters upon which Mr Gandy would have wished to address the Judge in the context of any variation to the 15 March 2018 orders.

[37] Similarly, at the hearing before me, Mr Gandy raised issues as to whether the psychological report obtained on the second respondent’s mental health was relevant to or determinative of the issues which the Judge considered at the directions conference in any event. For example, Mr Gandy submitted that the outcome of the psychologist’s report does not provide a sound foundation for the conclusion that there are no safety concerns with the second respondent having care of the child. These are, of course, matters of substance on which it is not appropriate or necessary for me to engage. They are, however, relevant to the issues that were clearly troubling the Judge at the directions conference and upon which the applicant ought to have had the opportunity to be heard before substantive orders were made. Mr Gandy would have no doubt wished also to respond to the submission made by lawyer for the child that the applicant was not willing to engage in “round table” discussions to resolve the custody arrangements in the interim.

[38] Finally, I note that similar issues arose in CLS v Family Court at Christchurch, a decision of Gendall J in August 2015.⁷ Orders had been made at a directions conference at which the applicant (the father) was represented by counsel but he was not himself present due to a misunderstanding. The second respondent (the mother) was present and represented by counsel, and counsel for the son was also present. At the directions conference, the Judge closely questioned the mother about matters she raised in an affidavit which had been filed in advance of the conference relating to concerns over safety of the parties’ son when in the care of the father. On that basis of that material and the information conveyed by mother at the directions conference, the Judge ordered that the father’s contact with his child be suspended.

[39] Gendall J was clear in his view that the applicant should have been given an opportunity to be heard and make submissions before the Judge made the suspension of contact decision in that case.⁸ Gendall J stated that this “follows in terms of basic natural justice requirements”.⁹ The Judge accordingly made a declaration as to the error and referred the matter back to the Family Court for an urgent re-hearing.

[40] I respectfully agree with and adopt Gendall J’s observations in relation to the requirements of natural justice. In my view, they apply equally in this case, particularly given neither the applicant nor his counsel was present at the directions conference.

What relief ought to be granted?

[41] Having found that a reviewable error occurred, the question is then what relief ought to be granted.

[42] In his application for judicial review, the applicant seeks:

(a) a declaration that the Judge erred in discharging the Interim Variation

Order on 2 May 2018; and

(b) reinstatement of the without notice orders made on 15 March 2018; or

(c) alternatively, for the matter to be referred back as a matter of urgency to the Waitakere Family Court for a short cause hearing as to the second respondent’s contact.

[43] Having found that the orders made at the directions conference came about through procedural error, the instinctive response would be to quash those orders (thus reinstating the effect of the 15 March 2018 orders) and direct that the matter be reconsidered in the Family Court. I also accept Mr Gandy’s submission that this case is almost the opposite to that facing Gendall J in CLS v Family Court at Christchurch (in terms of the matters relevant to relief), given in that case the concerns raised were

as to the child’s safety in the father’s care. In this case, the concerns raised, at least by the applicant and the s 133 report writer, are of the child’s safety in the second respondent care, being the beneficiary of the orders made by the Judge on 2 May 2018.

[44] I am, however, alive to the specialist jurisdiction of the Family Court, its Judges’ expertise, and that the Judge in this case followed, at least in part, submissions made by lawyer for the child. As I indicated to the parties at the hearing, given the specialist jurisdiction of the Family Court, the High Court is reluctant to interfere in decision-making by the Family Court by way of judicial review.¹⁰

[45] Having carefully considered the parties’ submissions on the question of relief, including the applicant’s concerns as to the potential delay in a short cause hearing being held on his application, I consider the appropriate course is to refer the matter back to the Waitakere Family Court for it to allocate an urgent short cause hearing as to the second respondent’s contact with the child. I observe that as a result of the approach taken at the directions conference, a hearing which, pursuant to r 416Z(5), ought to have taken place within three weeks of 2 May 2018 (where reasonably practicable), has not yet been held. I accordingly express my hope that the Family Court is able to schedule such a hearing without delay, and certainly within a matter of weeks rather than months.

Result

[46] The applicant’s judicial review application succeeds.

[47] I declare that the Judge erred procedurally in making the orders he did at the directions conference held on 2 May 2018.

[48] I make a further order that this matter is referred back as a matter of urgency to the Waitakere Family Court for an urgent short cause hearing as to the second respondent’s contact. I refer to my observations at [45] above in relation to the potential timing of such a hearing.

¹⁰ See, for example, Malone v Auckland Family Court [2014] NZHC 1290 at [53].

Costs

[49] Neither party addressed me on costs. It may be appropriate for costs on this application to lie where they fall. However, should any party seek costs and costs cannot be agreed, a memorandum is to be filed within 10 working days of the date of this judgment. Any memorandum in response is to be filed within a further

5 working days. I will thereafter determine costs on the papers. No costs memoranda

_{are to be longer than 3 pages in length.}

_{Fitzgerald J}

Solicitors: Thomas & Co, Auckland

Greg Presland, Auckland