BLK v FK

[2017] NZHC 302

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-764 [2017] NZHC 302

UNDER

Section 143 of the Care of Children Act

2004

IN THE MATTER

of an appeal against the decision of Judge
Black dated 24 August 2016

BETWEEN

BLK Appellant

AND

FK Respondent

Hearing:	9 February 2017
Counsel:	Appellant in Person S J Stewart for Respondent
Judgment:	2 March 2017

JUDGMENT OF THOMAS J STRIKE OUT APPLICATION

Introduction

[1]      These  proceedings  relate  to  longstanding  litigation  in  the  Family  Court beginning with proceedings under the Care of Children Act 2004 (the Act) initiated by  the  respondent,  Ms  K,  in August  2013.    Those  proceedings  concerned  the parenting and care of S, the son and only child of Ms K and the appellant, Mr K.  In December 2014 the Family Court issued a lengthy decision concluding with orders that S was to be in the day to day care of Ms K with Mr K allowed contact on

specified days.1     Mr K appealed against that and two subsequent decisions.   The

appeals were filed out of time and were struck out.2

1      K v K [2014] NZFC 9380.

2      K v K [2016] NZHC 1.

BLK v FK [2017] NZHC 302 [2 March 2017]

[2]      Ms K applied under the Act for enforcement of the parenting order and then for a protection order against Mr K.  There were various applications and directions made by the Family Court between 2015 and June 2016 when His Honour Judge Black in the Family Court at Wellington struck out Mr K’s defence to the application for a protection order and directed the enforcement proceedings be set down for a formal proof hearing in chambers.  Mr K was given leave to apply to oppose those orders within a specified time frame but made no such application.

[3]      On 24 August 2016 Judge Black issued his reserved decision in respect of the enforcement and other applications.   Mr K has purported to appeal  against that decision.  As a result of the appeal being filed out of time, Ms K applies for the appeal to be struck out and that application is the subject of this decision.

Background

[4]      I propose to canvas the background to the proceedings between the parties in some detail as it provides important context to a consideration of the strike-out application.

[5]      Mr K was served with the application under the Act for enforcement of the parenting order in June 2015.  Proceedings were stayed pending resolution of Mr K’s appeal to the High Court and the appeal was dismissed on 8 January 2016.

[6]      In the meantime, Ms K had filed a without notice application for a protection order in November 2015, which was granted.   In December 2015 Mr K filed an objection to attendance at the programme mandated by the protection order and in January 2016 he engaged counsel, by this stage his fourth in the general proceedings.

[7]      Counsel obtained an extension of time for the filing and serving of a defence and supporting affidavit.   Mr K was also granted an extension of time to file his affidavit evidence in respect of the protection order proceedings.  An unless order was made.

[8]      A further application was made seeking an extension of time for the filing of affidavit evidence (it is unclear whether this related to the enforcement proceedings

or the protection order proceedings or both) but in any event, despite Ms K’s notice of opposition, a second unless order was made allowing Mr K a further period of time within which to file his evidence.  The evidence was eventually filed, but was unsworn.  Mr K’s counsel sought leave to withdraw.

[9]      On 10 June 2016 Judge Black considered Mr K’s continued non-compliance with Court directions, including the breach of the second unless order.  He struck out Mr K’s defence to the protection order application and as a consequence the temporary protection order made in November 2015 became a final order by operation of law.   Judge Black debarred Mr K from defending the enforcement proceedings.   He granted Mr K leave to apply within seven days for relief and directed that the enforcement proceedings would be dealt with by way of a formal proof hearing in chambers.  Mr K did not file any application for relief.

This appeal

Judgment dated 24 August 2016

[10]     By  his  judgment  dated  24 August  2016,3   Judge  Black  briefly  noted  the background and then addressed on a formal proof basis Ms K’s applications for admonishment, a variation of the parenting order,4  for the Court to hold Mr K in contempt and costs.

[11]     Judge  Black  concluded  it  was  clear  from  the  evidence,  submissions  and report pursuant to s 132 of the Act that there had been ongoing and serious breaches of the parenting order by Mr K.  He noted that Mr K had persistently breached Court orders and was satisfied on the evidence that Mr K had no intention of complying with  them.     He  was  satisfied  admonishment  was  appropriate  and  formally admonished Mr K for his breaches of the parenting order.

[12]     Judge Black then addressed whether it was appropriate to vary the parenting order in light of the breaches.5

3      K v K [2016] NZFC 7004.

4      Care of Children Act 2004, s 68.

5      Section 68(1)(b).

[13]     The then current parenting order made in December 2014 following a five day hearing provided for Mr K to have contact with S every second weekend and on some holidays.   Judge Black noted the conclusion of Judge Ullrich QC that there needed to be structure around S’s contact with Mr K and that Mr K needed to address personal issues.

[14]     Judge Black then said:

[9]       Regrettably, [Mr K] has clearly failed to address those issues.  There have been protection order proceedings, numerous breaches of the parenting order, and numerous alleged breaches of the protection order.  I understand he is currently in custody.

[10]     While [S] is entitled to have a relationship with his father, the law requires that he is safe when he has that relationship.  As the Supreme Court said in Kacem v Bashier, safety is a mandatory consideration and outweighs the other s 5 principles.

[11]      I have come to the view that, given the evidence before me, the only sensible conclusion which can be drawn is that [Mr K] presents an ongoing risk  to  [S]’s  psychological  safety.    The  only  way  that  that  risk  can  be managed is for contact to be supervised.

[15]     For those reasons Judge Black discharged the December 2014 order and made a final parenting order in the terms sought by Ms K specifying supervised contact between S and Mr K.

[16]     Judge Black was not prepared to hold Mr K in contempt of Court given his absence, despite his conclusion that he was indeed in contempt of Court.

[17]     In respect of costs, Judge Black noted that for part of the course of the proceedings Mr K was  legally aided.   He awarded costs on a 2B basis with a

50 per cent uplift for the period during which Mr K was not on legal aid, totalling

$11,481.

Notice of Appeal

[18]     Ms K received notification of Mr K’s purported appeal by an unsigned email on 23 September 2016, three days outside the appeal timeframe.6     The notice of

6      High Court Rules, rr 20.4 and 20.6.

appeal was deficient in that it did not meet the requirements of the High Court Rules. It  did  not  specify  the  part  of  the  decision  appealed,  the  grounds  of  appeal  in sufficient detail fully to inform the Court and parties or the relief sought.7

[19]     The grounds of appeal were that the Family Court erred in fact, law “and decision”, the Family Court proceedings and decision were a serious miscarriage of justice, the appeal was “sound and supported” by New Zealand law.  The notice of appeal stated that detailed grounds of appeal and points of law together with additional relief sought would be filed in the High Court.

High Court directions

[20]     The deficiencies were pointed out by counsel for Ms K by memorandum filed for the first case management conference of the High Court appeal on 25 October

2016.  Mr K, at this stage acting for himself, also filed a memorandum for the first case management conference, purportedly in accordance with the High Court Rules and alleging that the appeal involved issues of significant public interest, including under the New Zealand Bill of Rights Act 1990, the Human Rights Act 1993, and pursuant to New Zealand’s international obligations under the United Nations Conventions on the Rights of the Child and the Rights of Persons with Disabilities.

[21]     Mr K noted that he was unable to engage a lawyer to represent him and that he had both a traumatic brain injury and adult ADHD, suggesting that an amicus curiae  should  be  appointed.    He  also  requested  that  the  High  Court  direct  a psychiatric report about him be prepared.

[22]     At the case management conference on 31 October 2016 His Honour Justice

Williams made the following timetable directions:

(a)       Mr K is to file and serve an amended notice of appeal showing proper particulars (the notice is deficient at this stage), and an application for leave to adduce further evidence, together with the evidence itself in affidavit form by Monday 5 December 2016.

(b)       Ms K is to file and serve her application to strike-out the appeal and a further application for increased security for costs by Monday

5 December 2016.

7      Rule 20.9(1)(b), (c) and (d).

(c)      Submissions will be exchanged in all applications and cross- applications by the relevant applicant on 3 February 2017 and the relevant respondent on 7 February 2017.

[23]     Williams   J   observed   that,   given   Mr   K’s   history   of   timetabling non-compliance in the Family Court, failure to meet the stipulated deadline risked the dismissal of his appeal.

[24]     Williams J also considered Mr K’s complaint that he could not obtain a lawyer on legal aid because none would work for him, noting he had parted company with four lawyers previously.  Counsel for Ms K agreed to make inquiries to assist Mr K in finding a suitably qualified lawyer.  Williams J observed it was important Mr K secured such a lawyer well before the filing deadline of 5 December 2016.

[25]     Counsel for Ms K did indeed assist Mr K in obtaining a lawyer, that lawyer being previous counsel for Mr K.8   Unfortunately for Mr K, legal aid was not granted and this was confirmed at least by 8 December 2016.9

[26]     By the time of the hearing of Ms K’s application to strike out the appeal,

none of the timetabling directions of Williams J had been complied with by Mr K.

[27]     Mr K did, however, attend the hearing and I address his oral submissions in this decision.

Application to strike out

[28]     The application to strike out Mr K’s proposed appeal was made on two

grounds:

(a)       Mr K failed to bring his appeal in time pursuant to the High Court

Rules; and

8      At the hearing Mr K complained that the lawyer was a friend of Ms K’s lawyer, something

counsel for Ms K absolutely rejected.

9      The date when the potential lawyer confirmed to Ms K’s lawyer that legal aid had been declined

and he was unable to assist Mr K further.

(b)the  notice  of  appeal  was  deficient  and  in  any  event,  completely unmeritorious with no hope of success.

[29]     The application referred to the fact no evidence was adduced by Mr K in the proceedings, nor was leave sought to adduce further evidence.

[30]     The grounds of appeal reflected the context of the history of proceedings between Ms K and Mr K, noting Mr K’s significant history of failing to comply with court orders, including two unless orders, and failure to comply with any costs orders.10

[31]     Finally, the application was on the basis that the best interests of S warranted the granting of the orders to bring an early end to court proceedings which have a negative impact on both Ms K and S.

Approach

[32]     I note that there has still been no application by Mr K for an extension of time for filing the appeal.  Nevertheless, given that Mr K is self-represented, and in the circumstances extending him considerable leeway,  I will consider a deemed application in the context of the strike-out proceedings.

[33]     The principles relating to the criteria for strike-out are well established.   The Court will not strike out a claim summarily unless it can be sure that the claim cannot succeed.11   The jurisdiction is sparingly utilised.  If the defect can be cured, the Court will normally order an amendment of the pleadings.

[34]     The following matters need to be addressed:

(a)       the extent of the delay and any explanation for it; (b)   the strength of the proposed appeal;

10     Approximately $55,000 in costs remains outstanding to Ms K.

11     Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33] per Elias CJ and

Anderson J.

(c)       any prejudice to Ms K; and

(d)      the best interests and welfare of S.

The delay and reasons for it

[35]     The delay in filing the appeal is relatively minimal.  However, Mr K has been aware since at least October 2016 that his appeal was out of time and, perhaps more importantly, that his appeal was deficient.

[36]     Mr K maintained that the issues identified on behalf of Ms K were simply a focus on the minutiae of paperwork whereas, he suggested, it was important to focus on the protection of the weak and the natural justice of the situation.  In this regard he emphasised what he considers to be the abusive behaviour of Ms K against which he claimed he was trying to protect both himself and S.  I make some observations in this regard when addressing the protection order in favour of Ms K and S later in this

decision.12

[37]     Mr K acknowledged that he was a great deal better now than he had been in the past.

[38]     As far as the delay is concerned, Mr K spoke at some length about his difficulties in securing a lawyer.   He made a number of allegations about lawyers who  have  represented  him  at  various  times  during  the  course  of  all  these proceedings, alleging they had a part to play in his non-compliance with various timetabling orders. The record shows this to be a constant complaint by Mr K.

[39]     Mr K maintained that the reason no evidence was filed in the District Court proceedings was because his lawyer left him in the lurch and then the District Court Registrar refused to accept his affidavit in respect of which he says he is taking separate action.  He suggested he was advised not to draft any documents himself and was assured that any issues as to non-compliance with Court directions could easily be rectified.

[40]     Mr K’s various explanations were given in unsworn oral evidence on the day of hearing itself, with no opportunity for the plaintiff to consider and test his allegations.  In those circumstances, little weight can be attached to Mr K’s various assertions as to why he did not comply with Court directions.

[41]     In any event, legal aid was refused and Mr K was advised that the lawyer potentially acting for him could not assist him further.  However, no effort was made to comply with the timetabling directions in this matter.  Mr K asserted that he had been warned against attempting to file anything himself.  However, he has personally filed documents in the past and, in the circumstances, should have attempted to comply with the Court orders.  The history of these proceedings shows that Mr K must be well aware of the consequences of non-compliance with Court directions. Mr K had been given the opportunity to amend his appeal and was clearly informed of the consequences of not doing so.

Strength of the proposed appeal

[42]     More to the point, however, it is clear that the proposed appeal lacks merit and has no prospect of success.  The appeal was not against the Judge making the final protection order, about which Mr K had many complaints.  He was given the opportunity to seek relief from the decision of Judge Black on 10 June 2016 when the order was made final but did not do so.  The proposed appeal is limited to the admonishment, variation of the parenting order and costs.

[43]     Mr K faces a significant hurdle in that these decisions were made on a formal proof basis.  There was no evidence before the Judge from or on behalf of Mr K and neither has  any evidence been  filed  (or leave  sought  to  file) subsequent  to  the hearing.

[44]     There is no evidence before the Court, even given by Mr K at the strike-out

hearing, which challenges the basis of Judge Black’s decisions of 24 August 2016.

[45]    Indeed, Mr K’s current circumstances suggest to me that Judge Black’s conclusion and concerns regarding Mr K were well justified.  Mr K is currently on electronically monitored bail in respect of a number of charges alleging breach of the

protection order, two relating to Ms K and around six it seems relating to S.  Mr K has pleaded not guilty to all of the charges and I understand they are to be heard at the end of February 2017.  His defence is to the effect that any contact in breach of the  orders  was  inadvertent  or  instigated  by  S.    One  of  the  charges  involves allegations that in April 2016 Mr K and S were involved in the theft of a vehicle and theft of petrol.

[46]     Mr K repeated assertions he had made previously about conduct by Ms K and in  that  regard  I am  mindful  of the  original  2014  Family Court  decision  which rejected Mr K’s version of events.

[47]     Given  all  these  factors,  I  am  satisfied  that  the  proposed  appeal  has  no prospect of success.

Prejudice

[48]     I accept the prejudice to Ms K and S should these proceedings be further delayed.

[49]     Ms  K  has  complied  with  Court  directions  and  has  not  received  any contribution at all to the award of costs in her favour of over $55,000.

[50]     In the circumstances these proceedings have been extremely costly to Ms K

both financially and emotionally.

Welfare and best interests of S

[51]     One of the factors in considering a child’s welfare and best interests is the continuing relationship with both of his or her parents which should be preserved and strengthened.13    It should be recognised that it is in S’s best interests to have a continued relationship with his father.

[52]     The current parenting agreement allows for Mr K to have supervised contact with S every second Saturday and Sunday from 10.00 am to 12.00 pm and every

Thursday from 3.30pm to 5.30pm.  This allows Mr K to remain in S’s life while he rebuilds his own life.  Mr K is not being removed from his son’s life and will still be an important part of it.

[53]     Decisions  affecting  a  child  should  be  made  and  implemented  within  a timeframe which is appropriate to the child’s sense of time.14    Continued litigation will have a greater impact on S than it would an adult.  There can be no doubt that the continuation of this litigation will have a negative impact on S’s welfare and best interests.

[54]     While Mr K asserted that, when S was under his care, S thrived in contrast to his current state, the 2014 Family Court judgment paints a very different picture suggesting  that  Mr  K’s  personal  problems,  disorganisation  and  disregard  for authority and rules had a negative impact on S.   The Judge also noted the undue psychological pressure Mr K placed on S in an attempt to alienate him from Ms K.

Conclusion

[55]     All the factors weigh heavily against the grant of an extension of time to

Mr K and strongly favour the strike-out of his purported appeal.

[56]     As noted by Judges previously, if Mr K’s circumstances change in a material way and he is able to rebuild his life, he can make the appropriate applications.

[57]     I concur with the observations of Ellis J that Mr K needs to maintain a loving and meaningful relationship with S within the parameters of the parenting and protection orders.  If Mr K were able to devote his energies to that and to his own health, his position will inevitably be assessed in a more positive light.

Result

[58]     For the reasons given, the deemed application for an extension of time to file the  appeal  is  dismissed  and  the  application  to  strike  out  the  proposed  appeal succeeds.

[59]     If Ms K wishes to apply for costs, a memorandum is to be filed by 5.00 pm on 17 March 2017.  Mr K will have a period of two weeks within which to file a response.

Thomas J

Solicitors:

C & F Legal, Nelson for Respondent