Judge in Oranga Tamariki case rebukes senior judges over intervention
Thursday, 19 August 2021
The head of Oranga Tamariki and two senior judges intervened in a part-heard Family Court hearing into the future care of a five-year-old girl in Hawke’s Bay, earning a sharp rebuke from the presiding judge, who said their actions were inappropriate and any communication would be “a breach of judicial independence”.
Sir Wira Gardiner, who was the acting chief executive of Oranga Tamariki at the time, communicated with the Chief District Court Judge Heemi Taumaunu and the Principal Family Court Judge Jackie Moran, who serve as the Heads of Bench, to relay his concerns about the behaviour of Judge Peter Callinicos.
Judge Callinicos was hearing a case in the Family Court in Napier involving Oranga Tamariki staff who wanted to remove a young Māori girl from the Pākehā couple who had cared for her for the past three years, over concerns that they could not meet her cultural needs.
Sir Wira appeared to have been concerned about the way the judge questioned social workers during the first part of the hearing, held in March. He claimed that Judge Callinicos had “bullied” Oranga Tamariki staff giving evidence at the hearing, according to documents obtained by Stuff.
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The full nature and extent of the discussions is unknown. They involved meetings between the Heads of Bench and Oranga Tamariki in late April and early May, as well as a phone call and letters.
The Heads of Bench did not tell Judge Callinicos of the communications until later, according to court minutes.
When they contacted Judge Callinicos to convey the concerns, he reminded them that it was inappropriate for them to approach a presiding judge to discuss any aspect of a part-heard case. They should refrain from doing so as it was a breach of appropriate judicial independence and judicial conduct, he said.
The Guidelines for Judicial Conduct 2019 state that judicial independence is a “cornerstone of our system of government in a democratic society and a safeguard of the freedom and rights of the citizen under the rule of law”.
The independence of the judiciary from the legislative and executive arms of government is “fundamental to the constitutional balance under the Constitution Act 1986 as well as to the principle of legality which underlies it and the rights and freedoms organised by the New Zealand Bill of Rights Act 1990,” the guidelines state.
The guidelines stress the importance of judges remaining independent of each other and state: “The Chief Justice or Head of Bench has no authority over the discharge of judicial function by other judges.”
In early July, Judge Callinicos informed the parties to the hearing of the Heads of Bench communications. He believed the judges’ actions could be seen as having the potential to impact his impartiality and he invited the parties to advise him if they had and concerns and whether they wished to make an application to have him recused from the case, court minutes state.
The lawyer for Oranga Tamariki, Andrew Gallie, told Judge Callinicos in “unequivocal terms” that he had no knowledge or involvement in communications between Sir Wira and the Heads of Bench. Gallie said Oranga Tamariki had no wish to pursue a recusal application to have the judge taken off the case.
The current caregivers also had no concerns and did not want him taken off the case. Nor did the lawyer for the child, or the lawyer for the prospective caregivers (who would care for the girl if she was removed from her present family).
The lawyer for the mother, Janet Mason, was the only one to make an application for recusal. She made the application because she felt the circumstances for recusal were raised around same time as media articles documenting concerns of various judges, including Judge Callinicos, in relation to another case.
Mason said the fact that Judge Callinicos had not been informed of what was discussed by Sir Wira and the Heads of Bench could make him feel a range of emotions including “surprise, sadness, dismay, hurt, disbelief, distrust, anxiety and anger” and that would mean he could not be impartial.
In a 16-page reserved decision made on July 15, 11 days before the Family Court hearing was to re-commence, Judge Callinicos ruled that “the possibility of bias raised by the applicant for recusal is remote, and at some distance from the real possibility required at law”.
He determined that he should not be disqualified from presiding over the case.
Judge Callinicos noted in his decision that the application had been sparked by the actions of Sir Wira and the Heads of Bench, and their concerns around his interaction with Oranga Tamariki staff.
“If there are concerns about such conduct, then there is an appropriate avenue for how they be addressed. Intruding into the part-heard live case is not one of them,” he said.
Sir Wira stood down from his role for health reasons on Monday.
Sir Wira did not respond to questions about his concerns about Judge Callinicos’s behaviour, what he had hoped to achieve by contacting the Heads of Bench and whether he had similar communications with the Heads of bench about other cases involving Oranga Tamariki.
Nor did Chappie Te Kani, who is standing in for Sir Wira, answer the questions. Instead, he said: “The Chief Executive has regular and appropriate engagements with the Heads of Bench to discuss matters of process and procedure or other matters not related to the substance of particular cases.”
Judges Taumaunu and Moran did not respond to questions either. Instead, a spokesperson for the Office of the Chief District Court Judge said the judges were “not in a position to comment publicly on this individual case currently before the court or on matters raised by Judge Callinicos in his minute.”
What is ‘recusal’, and when can it be used?
Recusal is the term used when a judge removes themselves from a case on the grounds that they may have a possible conflict of interest or lack of impartiality.
The standard required for recusal is one of “real and not remote possibility” rather than probability.
The guidelines, written by then Chief High Court Judge Geoffrey Venning in 2017, state that a judge must sit on any case allocated to them unless grounds for recusal exist.
For a judge to recuse themselves, they must ask if “in the circumstances, a fair-minded, fully informed observer would have a reasonable apprehension that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.
There are various reasons a judge could be seen as having grounds for recusing themselves. The case could involve a party or witness who is related to, or a close friend of, the judge, for example. There could be economic reasons; the judge could have a shareholding or membership in a company or organisation that is a party.
Or it could be because the judge has previously publicly expressed an opinion on an issue before the court, or if they had acted as a legal adviser in respect to a matter when they were a lawyer.
The guidelines also state that a judge should disclose “any matter which might give rise to objection”. If such a matter arises the judge must, as soon as possible, inform the parties and lawyers.
The judge must provide sufficient information to enable the parties and lawyers to decide whether to make a recusal application.