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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BLK v FK

Details

AGLC: BLK v FK [2017] NZHC 302
Case: [2017] NZHC 302
Decision Date: 2 March 2017

CaseChat Overview and Summary

In this case, the High Court of New Zealand was asked to decide whether to strike out an appeal filed by Mr K against a decision of the Family Court. The Family Court had made orders regarding the care and parenting of the parties' son, S, following lengthy proceedings under the Care of Children Act 2004. The appeal was filed out of time and was also deficient in several respects. The court was asked to consider whether it should grant an extension of time for Mr K to file the appeal, or strike it out. The court found that the appeal was both untimely and deficient, and that there was no merit in it whatsoever. The appeal was therefore struck out. The court noted that the proceedings had already had a significant negative impact on the mother and child, and that further delay would only serve to worsen the situation. The court emphasised that if Mr K could demonstrate a material change in his circumstances, he could make appropriate applications in the future.

The final orders of the court were that the application for an extension of time to file the appeal be dismissed, and that the appeal be struck out. If the respondent wished to apply for costs, she was to file a memorandum by a specified date, and the appellant would have two weeks to file a response.

Orders