Family Court Judges decisions "offensive" and "inconsistent with the Care of Children Act

It has been reported that in a number of recent decisions the High Court has criticised a number of orders made by Auckland Family Court judges, describing them as “offensive” and “inconsistent with the Care of Children Act."

The judges who made the invalid orders are Judge Jan Walker, Judge David Burns (twice) and Judge Timothy Druce.

In a recent decision, an unrepresented father was awarded the right to costs against the Family Court when he appealed against orders that he had agreed to but without being told by Judge Walker of a statutory cooling off right to first seek legal advice before signing anything that he might regret at a later date if the circumstances changed.

In awarding the costs, Justice Venning described as “offensive” directions made by Judges Walker and Burns that the father was also disqualified from bringing any future applications under the Care of Children Act unless there was a dire and immediate emergency relating to safety of his children. This raises an interesting argument against a relatively common direction of the Family Court prohibiting further applications.

In two other recent decisions, the High Court said Judges Burns and Druce had without proper jurisdiction or grounds suspended parents’ guardianship rights. In one case Judge Burns said he felt the answer to resolving a dispute between two parents as guardians and who shared the care of their child would be to suspend the father’s guardianship rights.

Judge Burns said “I consider nearly all the conflictual situations given as examples before the Court arise when father is operating as a guardian. It does not arise when he is operating as a caregiver. This raises the issue therefore as to whether I can remove him as a guardian or suspend or vary his guardianship rights as one possible solution to the ongoing conflict issues.”

The High Court was critical that the only legal precedent Judge Burns quoted for his decision was an earlier decision of his own where he did exactly the same thing. Justice Woolford noted that “Apart from quoting extensively from his previous decision, Judge Burns did not cite any other authority for the proposition that he had the jurisdiction to suspend the appellant’s guardianship rights…It is my view therefore that Judge Burns has exceeded his jurisdiction in purporting to suspend the appellant’s guardianship rights. Guardianship is a fundamental right of a parent.”


In another recent decision, Justice Woolford addressed the inadequacies of Judge Druce’s decision to remove a parent’s guardianship rights for six months when the parent was neither legally represented or even present when he made the order. Describing suspension of guardianship as a form of deprivation, Justice Woolford said “In any event, I am of the view that a parenting order cannot include deprivation of a parent of guardianship of his or her child.”

If the Principal Family Court Judge reads the decisions of the High Court, one would have to hope that he must surely be wondering what is going on that is causing his judges to get it so badly wrong.