CLM v Chief Executive of the Ministry of Social Development HC Auckland CIV 2009-404-7117  NZHC 1299;  NZFLR 11 (28 June 2010)Last Updated: 13 August 2010
NOTE: PURSUANT TO S 437A OF THE CHILDREN, YOUNG PERSONS, AND THEIR FAMILIES ACT 1989, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
UNDER the Judicature Amendment Act 1972 and/or Part 30 High Court Rules, the Children, Young Persons, and Their Families Act 1989 and the New Zealand Bill of Rights Act 1990
IN THE MATTER OF an interim custody order granted without notice by the Family Court at Waitakere on 14
October 2009 in respect of the plaintiff's
unborn childBETWEEN CLM Plaintiff
AND THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT First Defendant
AND HELENE GREENING Second Defendant
AND THE FAMILY COURT AT WAITAKERE Third Defendant
Hearing: 19 May 2010
Appearances: Rodney Harrison QC and Dianne Martin for Plaintiff
Una Jagose and Rachel Roff for Defendants
Dagny Baltakmens for Third Defendant (to abide) Judgment: 28 June 2010
JUDGMENT OF HARRISON J
 I declare that the decision of the Family Court at Waitakere on 14 October
2009 to make an order without notice to CLM placing her then unborn child in the interim custody of the Ministry breached CLM's right to natural justice under s 27(1) NZBORA 1990.
 Costs normally follow the event. CLM is not legally aided. The Ministry is ordered to pay costs and disbursements.
 Mr Harrison sought an award for increased or indemnity costs based on what he describes as high-handed behaviour by the Ministry's representatives, both in applying without notice and in refusing to co-operate in suspending enforcement of the first order once CLM was served and made known her intention to apply to set it aside. He submits that an application for judicial review would not have been necessary but for the Ministry's intransigence and irrationality. In the result, CLM was forced to obtain an interim order in this Court on 30 October, largely on the same conditions as those imposed on the second order in the Family Court, when her complaint could have been dealt with promptly and efficiently, with the Ministry's co-operation, in the Family Court.
 I have some sympathy for Mr Harrison's argument. The conduct of the Ministry's solicitor in failing to respond constructively to proposals made by Ms Martin for interim resolution was unsatisfactory, arguably arbitrary. And Ms Jagose has properly drawn my attention to authority which might be invoked in support of an application for indemnity costs.
The THREE Family Court Judges involved in violating the Bill of Rights in this case are;
Judge Tony Fitzgerald
Judge Simon John Maude
Judge David Mather
I think these three can go on the Judges Directory blog.