AA v BB

[2021] NZHC 3139

NOTE: PURSUANT TO s 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,

PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing- judgments/

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-432

[2021] NZHC 3139

BETWEEN

[AA]

Applicant

AND

[BB]

Respondent

Hearing:

(Determined on the Papers)

Counsel:

Applicant – self-represented C E Finn for Respondent

G P Tyrrell as Lawyer for the Children

Judgment:

19 November 2021

JUDGMENT OF ASSOCIATE JUDGE LESTER

(application for adjournment)

[AA] v [BB] [2021] NZHC 3139 [19 November 2021]

[1]                  On 26 October 2021, Nation J set down [AA]’s appeal from the decision of Judge Walsh  in the Family Court for a two-day hearing in the High Court  to begin  6 December 2021. His Honour made detailed timetabling and other directions to allow the hearing to proceed.

[2]                  [AA]’s notice of appeal was filed on 13 September 2021 and is a lengthy document addressing numerous points the applicant wishes to raise.

[3]                  On 28 September 2021, Dunningham J appointed Mr Tyrrell as counsel for the children to represent their interests in the appeal.

[4]                  Nation J recorded in his Minute of 26 October 2021 that, in declining security for costs, he feared ordering security may make it impossible for the applicant to pursue her appeal and that “[i]t is in the interests of the children that there be an end to litigation”.

[5]                  Under the timetable directed by Nation J, the applicant’s submissions both as to her appeal and application for stay of the Family Court judgment were to be filed by 12 November 2021. On 15 November 2021, Mr Tyrrell filed a memorandum drawing to the Court’s attention that the submissions had not been filed. Mr Tyrrell reiterated that the efficient disposition of the appeal would best serve the welfare and interests of the children, whom he represented, echoing Nation J’s comment referred to above. Mr Tyrrell sought a direction that the applicant is to confirm within 24 hours of his memorandum whether she is continuing with the appeal and to file an application for leave to file her submissions out of time, and that in default the Court should consider an application to dismiss the appeal. Mr Tyrrell’s memorandum prompted an application by the applicant for an adjournment of the hearing and an extension of time for filing the submissions.

[6]                  The application for an adjournment is opposed both by Mr Tyrrell  and by  Ms Finn, counsel acting for the respondent, [BB]. The document filed by the applicant in support of the application for an adjournment runs to some 20 pages.

[7]                  The applicant correctly notes that Friday 12 November 2021 was a public holiday in Christchurch and as such was not a “working day”. While that may not strictly be the case for the purposes of the High Court Rules 2016, nonetheless the Court Registry was not open for filing on that day and so had the submissions been circulated on 15 November 2021 (the following Monday), not much objection could have been taken.

[8]However, that has not occurred and an adjournment is sought.

[9]                  The  applicant  records  that  at   the   case   management   conference   on   18 October 2021, which led to the 26 October Minute of Nation J, the applicant submitted that a hearing in late November or early December 2021 would cause serious injustice.  I accept Mr Tyrrell’s  point that such cannot now  be  advanced  as a ground for an adjournment when those factors were known to Nation J when setting down the hearing for 6 December 2021.

[10]The applicant then says that she will by a separate memorandum:

… seek clarification on direction to file submissions in anticipation or unknown advance parameters with absence of a decision of evidence admissibility made well prior and during the hearing.

[11]              The short point is that the applicant has identified in her notice of appeal the matters that she wishes to argue and her submissions need to address the grounds from her notice of appeal that she wishes to pursue. Paragraph [10](e) of Nation J’s Minute of 26 October 2021 requires that the applicant’s submissions are to relate just to the appeal against the day-to-day care orders and contact orders made in the Judgment which is under appeal and the application for stay of those decisions. The application for an adjournment suggests the applicant sees the scope of her submissions to be filed as ranging further than those limits. Again, the applicant’s submissions must focus on the matters as directed by Nation J and raise only matters relating to those points referred to in her notice of appeal.

[12]                Her submissions are to explain in what way the learned Family Court Judge erred in relation to these and these points only. The reality is the applicant must know the matters she wishes to argue in support of the appeal.

[13]              The applicant then refers to having been refused access to the Family Court file. If there are reports and matters which were not disclosed to her which formed the basis of the decision, then that in itself may be a ground of appeal. The material upon which the appeal is to proceed was identified by Nation J at para [10](c) of his Minute of 26 October 2021. Mr Tyrrell has completed the common bundle as directed.

[14]              The steps the applicant may have underway with the Ombudsman, the Human Rights Review Tribunal or in the Court of Appeal are not, in my view, grounds to delay the appeal hearing. Rights of appeal from the Family Court are to this Court and the applicant’s appeal rights are for this Court, not the other institutions referred to.

[15]              Criticisms the applicant has of the involvement of counsel, Mr Tyrrell and  Ms Finn, are not grounds for an adjournment. Mr Tyrrell was re-appointed by this Court and it is not for me in an application for an adjournment to undo his appointment.

[16]              The applicant refers to Minutes, Orders and directions of Judge Duggan, Judge Hunt and Judge Walsh across various proceedings commencing in 2019. Such are not subject to the present appeal. The focus of the present appeal is Judge Walsh’s decision, and his decision alone.

[17]              While I have not responded to every paragraph in the applicant’s memorandum, I am satisfied that none of the matters raised justifies the appeal hearing being adjourned.

[18]              The applicant does not suggest when she could file submissions. Her reference to the involvement of the Ombudsman and other parties suggests she is contemplating a lengthy deferral of the appeal.

[19]              I come back to Nation J’s comment referred to earlier, that it is in the interests of the children that the litigation between their parents come to an end.

[20]The application for an adjournment is declined.

[21]              [AA]  is   to   file   and   serve   her   submissions   by   5.00 pm   on   Monday 22 November 2021.

[22]              The time for the respondent’s  submissions  in  reply  is  extended  to Monday 29 November 2021. It is not practical to extend the time for Mr Tyrrell’s submissions beyond Friday 3 December 2021.

Associate Judge Lester

Solicitors:

Layburn Hodgins, Solicitors, Christchurch G Tyrrell, Barrister, Christchurch

Copy to:
[AA], the Applicant