Allegations made by lawyer Tony Ellis implicate New Zealand's two most senior judges in an affair that reflects badly on the judiciary and its handling of concerns about Hawke's Bay Family Court Judge Peter Callinicos.

What Ellis has disclosed will almost certainly serve to reinforce perceptions that Callinicos has been the target of a furtive - in fact you might say conspiratorial - gang-up.

According to Ellis, the case threatens judicial independence and has caused a major rift among judges.

Senior lawyers are scratching their heads trying to recall whether any judicial squabble has ever before been aired so publicly.

Figuratively speaking, the fire is in the fern and threatening to singe some illustrious names.

In an incendiary letter to the Judicial Conduct Commissioner, Alan Ritchie, Ellis has alleged that:

• Callinicos was "unlawfully lobbied" by Chief District Court Judge Heemi Taumaunu and Principal Family Court Judge Jackie Moran, together known as the Heads of Bench, over his handling of a case that was then still in progress.
• Ritchie, whose role is to assess complaints about the conduct of judges, "irrevocably compromised" his independence through the way he dealt with concerns about Callinicos.
• Callinicos was investigated without his knowledge and with no opportunity to defend himself.
• Callinicos himself claims he received "misleading and bullying" correspondence from the two senior judges, known as the Heads of Bench, and was the subject of "scathing" letters sent to Ritchie by the Heads of Bench and by the second-ranked judge of the Supreme Court, Justice William ("Willie") Young.
• Ritchie predetermined Callinicos's guilt without his knowledge and without giving him a chance to respond to criticism.
• Ellis quotes Callinicos as saying: " … the dumping of this unilateral crap into [the] public domain compounds the injustice as I have no recourse in the investigation, or in the public eye."
• Chief Justice Dame Helen Winkelmann and Young are implicated in the affair by allegedly failing to disclose that Young was involved in behind-the-scenes discussions about the case.
• Young reached conclusions about the case without giving Callinicos an opportunity to put his side.

According to Callinicos, 60 of New Zealand's 180-odd judges have contacted him expressing their support.

Callinicos is quoted as saying the actions of his judicial superiors have sent "shivers of fear" through the District Court, of which the Family Court is part.

Ellis accused Ritchie of kowtowing to senior judges and added: "A well-informed independent observer would ask the question: "Who are the bullies here, Judge Callinicos, or Justice William Young and the Chief Justice?"

Readers of this blog will be familiar with the background.

In the Family Court, Callinicos thwarted Oranga Tamariki's underhand attempts to remove a girl - whom Stuff named Moana - from a loving, stable home and place her with unfamiliar Maori caregivers on the pretext that her Pakeha foster parents weren't meeting her "cultural needs".

In a 145-page judgment, Callinicos tore into Oranga Tamariki social workers over their conduct in the case.

His ruling rapidly escalated into a dispute over judicial independence when it emerged that Taumaunu and Moran had intervened in the case, apparently at the urging of the then acting Oranga Tamariki CEO Wira Gardiner.

Callinicos protested that this action compromised his judicial independence - a point subsequently taken up by Ellis and other unnamed lawyers in complaints to Ritchie.

In a preliminary report issued last week, Ritchie inflamed the issue further when he found that the two senior judges had not acted inappropriately. Extraordinarily, he appears to have reached this conclusion without bothering to speak to Callinicos.

That provoked Ellis into lodging the further complaint implicating Winkelmann and Young.

In this latest complaint, a copy of which has been sent to Attorney-General David Parker, Ellis alleges that when Winkelmann and Young met lawyers acting for Callinicos, they failed to disclose that Young "had been involved in making a finding that Judge Callinicos bullied witnesses [in the Moana case] and that the Chief Justice concurred".

Ellis continued: "Justice William Young, in reaching a conclusion that Judge Callinicos had made comments that were disproportionate and inappropriate, [had] made gratuitous criticisms, and engaged in what appears to be bullying, following an investigation which did not seek input from Judge Callinicos, and taking no action to seek such input himself, this undermined judicial independence. The Chief Justice's concurrence compounded this error."

Ellis challenged Ritchie to recuse himself from further consideration of the case, writing: "Your approach has created not just actual bias, or its appearance, but worse created a scandal not seen since Edwards [a landmark case from 1892], and has now implicated not only … the Chief District Court Judge and the Principal Family Court Judge, but now also the Chief Justice, and Justice William Young, NZ's second highest ranked Supreme Court Judge as well."

What is now clear is that judicial concerns about Callinicos date back to his handling of a controversial unrelated case in April involving a woman named as Mrs P, whose cause was taken up by feminist academics and sympathetic journalists who claimed she was mistreated in Callinicos's court.

According to leaked documents published by Stuff last week, Young had been providing "advice" to the Heads of Bench about Callinicos, apparently without his knowledge, since then.

Young was reported as saying in a letter to Ritchie that there seemed to be a pattern of conduct by Callinicos and those on the receiving end "considered, understandably, that they had been bullied".

He had read transcripts from the Mrs P and Moana cases and saw the intervention of Callinicos as "excessive, partisan and demeaning".

Even from a non-legal standpoint, this seems an extraordinary way of going about things.

Callinicos appears to have been investigated behind his back by the country's second most senior judge and been given no chance to respond to accusations against him.

According to Ellis, that's a denial of natural justice.

Meanwhile, questions arise about apparent bias in the media coverage of the Mrs P case, which unquestioningly took her side and almost certainly contributed to the anti-Callinicos mood.

People familiar with the case say the coverage didn't fairly reflect a long and complicated history dating back to 2012 and involving multiple judges.

In fact, media coverage of the Callinicos affair by Stuff - the only media organisation to report the Moana case and its repercussions - forms an intriguing sub-plot to the main narrative.

While coverage of the Moana case by Stuff's veteran Hawke's Bay reporter Marty Sharpe has seemed fair, neutral and balanced, the same can't be said for the loaded reporting of the Mrs P case.

Kirsty Johnston, the Stuff journalist who reported the protest in support of Mrs P by women academics and "domestic violence experts" in April, wrote a story published last Friday which highlighted Young's claim that Callinicos had bullied Mrs P and subjected her to demeaning treatment.

To bolster the story, Johnston went back to the same "anti-violence advocacy group" she had quoted in April.

Not surprisingly they obliged by calling for Callinicos to be "made accountable" for the Mrs P case and others he had presided over.

No one reading the story would have been left in any doubt that Callinicos had behaved reprehensibly.

After all, even the country's second most senior judge apparently thought so.

Coincidentally or otherwise, Stuff gave that story far greater prominence than one published a day earlier by Sharpe, which took a notably more neutral (and therefore less condemnatory) tone in reporting Ritchie's preliminary finding in the Callinicos case.

Johnston followed her Friday hit-job on Callinicos with another the following day targeting retired Hawke's Bay judge Tony Adeane, who was in the frame for several cases in which his decisions were overturned on appeal because of faults in the way he had directed juries.

Two stories on successive days, both reflecting badly on ageing male judges?

It looked suspiciously like a pattern - an impression reinforced by Johnston's description of herself on the Stuff website as "an investigative journalist with an interest in inequality, gender and social justice".

An activist, in other words, who by her self-description inevitably creates doubts about the neutrality of her work.

But at least Stuff published the stories, which is more than can be said for its treatment of the latest disturbing claims by Ellis, which apparently warranted not a word of coverage, although a copy of his letter had been sent to Sharpe.

Put all this together and you get a very worrying picture.

Courts are supposed to prevent abuses of power and the media are supposed to expose them.

The worrying conclusion to be drawn from the Callinicos affair is that we may no longer be able to depend on these two vital institutions to guard our rights and freedoms.

• Karl du Fresne has been in journalism for more than 50 years. He is now a freelance journalist and blogger living in the Wairarapa region of New Zealand.
• First published by Karl du Fresne. Republished with permission.

He says it's partly because he's tired of struggling with a broken system where he can't make headway for his clients.

In one case, Bodle's client has been waiting for access to relationship property since 2014. These delays cause years of anguish and cost vast amounts of money, he says.

The Property (Relationships) Act 1976 doesn't help. Two years after the Law Commission said it wasn't fit for purpose, it's still being used.

A woman whose family has been going through the system agrees. Heather Mackay says she is challenging the "idiocy" of the Family Court which she says is having a detrimental effect on her daughter and grandchildren.

"Separation alone is traumatic, an acrimonious separation is even worse. But having the Family Court involved is certainly an eye-opener into how failed a system can be," she says.

One failing is an inability to make firm decisions, leaving matters unresolved, she says. "The rest of us have to make decisions all the time and stand by them."

She'd like less interference from the courts and lawyers in disputes which are often destructive, making family issues worse. Less paperwork and processing and timelines with deadlines would help, she says.

"And don't allow the court system to play out to one side. It seems like they're bending over backwards for the wrong person."

She doesn't think the Family Court is working for families. In fact she'd prefer they weren't there.

Mackay and her daughter hope to meet their MP to discuss their concerns. She's anticipating a fob off and more frustration neither of them can cope with another day of "utter disorganisation and idiocy," she says.

Bodle echoes the same sentiment.

Society and the Government are correctly concerned about social issues. As a result, judicial appointments in the Family Court are predominantly coming from strong care and protection backgrounds.

Dealing with domestic trauma takes a different set of skills to resolving complex property disputes. Judges lack commercial experience, he says.

"The District Court threshold for commercial cases is $200,000. We do relationship property that can involve tens of millions. They (some judges) do not understand commercial law. We can stop a kid getting out of the country in a matter of hours but money can move in an instant."

Another issue is the lack of action by judges, which sends the wrong signals. "It's just a message that if you want to take the risk, you can rort the system."

Judges have to be brave, he says. These are people, their lives and livelihoods.

He pays tribute to the Family Court judges who have to use multiple acts of law as they preside over issues. They work hard and are often lied to. But he wants to see the Contempt of Court Act 2019 used to sort this out. It carries a penalty of up to six months jail or a $25,000 fine.

Although he's done with Court work, he's about to use his expertise elsewhere, however - possibly helping refugees, he says.

Source

• NZ Herald
• Image: RNZ

The Family Court must make changes to ensure women and children are safe, the women's rights committee says.

The UN committee also says it regrets New Zealand had chosen not to established a royal commission of inquiry into the courts.

The committee recommended a royal commission in 2018, after hearing multiple reports the courts were not meeting victims' needs.

The government instead ordered a ministerial review. That review would have a more limited scope than a royal commission.

The committee is concerned the ministerial review did not address the "root causes of the systemic lack of trust and sensitivity" towards female victims in the court. It is also concerned women's safety wasn't part of the inquiry.

The UN committee said these issues led it to believe New Zealand did not implement its recommendation.

It asked for more information about what "appropriate action" it would take to make New Zealand's court system safe, before New Zealand's next appearance before the UN committee in 2022.

In general, New Zealand only reports every four years on its the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). This convention is regarded as the international bill of women's rights.

However, the UN committee has asked New Zealand to complete a two-yearly update, because it is concerned about New Zealand's response to family violence issues.

The committee's report was immediately hailed as "validating" by domestic violence advocates. They have argued for years that the courts do not properly understand family violence, so are unsafe.

Deborah Mackenzie from the charity the Backbone Collective says it is affirming that the UN is listening to victim-survivors' voices about their concerns with the court process.

"New Zealand can't continue to pretend that this is a great place to be a woman or a child. Family and sexual violence is a common occurrence and women keep telling us there is very little protection or support provided to them - partly because there is an inability to see violence and acknowledge it, especially when it doesn't look how we expect."

Natalie Thornburn of the Women's Refuge says the UNs recommendations reflect reality for many women: when they try to seek safety through the Family Court, the violence against them is obscured or invisible.

"That's not because the court doesn't want to do right by people, but because they don't necessarily know how to...it needs a specialist response."

The UN report also notes some issues have improved for women in New Zealand.

These include satisfactory progress on a new abortion law, a national strategy on family violence, protections for migrant women, plus protections for disabled women who were abused by caregivers.

Source

• Stuff
• Image: Lawyers Weekly

Catholic Social Services counsellor Gail Teale says it is likely couples who want to separate will bypass the court completely which means the dominant partner's wishes will override those of the more vulnerable partner - usually the woman - and any children will lose out completely. ‘The risks for families where there are abuse issues are likely to increase.'

Gail Teale says the existing counselling currently sees more than 80 percent of couples who attended counselling manage to resolve their differences and avoid further involvement with the court.

The government announced a Family Court review last year and Catholic Social Services and the Law Society were among those who made submissions advocating the needs of children within the proposed changes. But the latest plan does not appear to have been influenced by these submissions.

Couples must access a Family Dispute Resolution service (FDR) for which they will be charged around $900. ‘Many couples will not be able to afford this fee. Then there are the fees they must pay every time they file applications with the court or go through a court hearing.'

Gail Teale says it is unrealistic to expect that couples will be able to resolve the dispute themselves. Many are at breaking point by the time they reach this stage.

Source:

• Wel-com
• Image: CLIF

Judge Peter Boshier questioned police statistics which show recorded family violence offences reversed an upwards trend to drop by 3.1 per cent to 52,408 in 2010-11.

Addressing the National Collective of Independent Women's Refuges annual conference yesterday, Judge Boshier asked whether the statistics "tell a true story".

He said there was "no let-up" in cases before courts, despite police recording a drop in offences of 10.2 per cent in Auckland and 8.9 per cent in Counties Manukau.

"I would have to say ... the sheer volume of cases coming into our family violence courts means that in some respects we are struggling."

Judge Boshier said it was crucial that police correctly recognised an incident as being family violence when they were called out.

"In some cases it will be obvious but in others that will not be so."

The statistics showed only that reported family violence may have levelled off or dropped slightly, he said.

"I think it premature to suggest that rates of family violence in New Zealand are dropping to any great extent.

"I fear that investment in elimination of family violence may need to compete strongly with other demands and I believe we need to be very vigilant on this front."

Judge Boshier warned the Government not to scrap stopping violence programmes, which are mandated when courts make protection orders.

In its "Reviewing the Family Court - a public consultation paper" released in September, the Government said it could be more efficient for other agencies to oversee the programmes.

Judge Boshier said a review of the programmes was needed, including what offenders should attend what programmes, and whether more support should be offered to victims.

"But I warn against the loss of mandatory programmes under the guise of suggesting some other Government agency will fill the void."

• Source: New Zealand Herald
• Image: Mental Health Foundation of New Zealand
• See also: The Dominion Post