CH v SM

[2015] NZHC 1599

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-2693 [2015] NZHC 1599

UNDER	the Care of Children Act 2004
IN THE MATTER OF	an appeal against a decision of the Family Court
BETWEEN	CH Plaintiff
AND	SM Defendant

Hearing:	7 July 2015
Appearances:	G J Wagner for Appellant Respondent in Person
Judgment:	7 July 2015

ORAL JUDGMENT OF DUFFY J

Solicitors:

McMahon Butterworth Thompson, Auckland

Counsel:

Gabrielle J Wagner, Barrister, Auckland

CH v SM [2015] NZHC 1599 [7 July 2015]

[1]      This is an appeal from a decision of the Family Court making a parenting order under the Care of Children Act 2004.   The parties are agreed that I should allow the appeal and remit the matter to the Family Court to be reconsidered, which is what I propose to do.

[2]      In March 2014 the appellant applied to the Family Court regarding the interpretation of the parenting order that was then in place for specific care arrangements of the parties’ child, who I shall refer to as S.  There was a problem regarding  the  arrangements  which  related  to  when,  at  the  conclusion  of  the Christmas summer holiday period, S would be handed to one or other of her parents. The order was unclear as in clause (h)(v) it simply provided “thereafter the normal term time arrangements will resume”.  The parties could not agree on the actual date on which in any year the normal arrangement was to resume, and so each found the phrase to be unclear and in need of clarification.

[3]      When the matter came before the Family Court a number of steps were taken. These ultimately led to a judicial settlement conference on 22 August 2014. Following that conference the Judge issued a minute dated 25 August 2014.  At [2] and [3] of the minute the Judge recorded the measure of agreement that had been reached at the settlement conference. Then at [4] the Judge said:

The parties have not been able to reach agreement on the interpretation of the words in (h)(v) “thereafter the normal term time arrangements will resume.”

[4]      This led the Judge to adopt the following procedure, which appears at [5] of the minute.  He directed no further affidavit evidence was to be filed.  He directed a memorandum to be filed by counsel.   Each counsel was to put forward the interpretation that each wished to advance for the interpretation of the phrase in (h)(v) of the order. The matter was then to be placed back before the Judge.

[5]      The Judge noted the amendment to the law which permitted him to preside at a disputed hearing, even though he had presided at the settlement conference.  The Judge recorded that the parties had not been able to reach agreement on the meaning of the key phrase.  He then said “I will then make a ruling.”  The Judge decided the

matter did not warrant another Judge having to read the file.  The Judge said that he would decide which of the two calendars presented to the Court is to be chosen.  In this regard each party was to file a calendar setting out their preferred interpretation of the implications of the phrase “the normal term time arrangements will resume” by nominating a date on his or her calendar for when the normal term arrangements would recommence.   The Judge said he would issue a short decision with brief reasons.  No reasons were given for why the Judge considered that the disputed issue could be resolved by him on the papers.

[6]      The decision the Judge issued is set out in a minute dated 23 September

2014:

I have read the memoranda filed by counsel on the reserved issue.   I’ve considered the arguments presented.  I order the care arrangements as set out in Mother’s calendar and direct the calendar as presented by her be adopted. They are to be provided to the school.  I direct Ms McNabb prepare the draft orders for sealing in consultation with Mr Morahan taking into account the orders made on 25/8/14 and the direction.  The calendars are to be attached to the sealed order.

[7]      No reasons were given for why the Judge preferred the “Mother’s calendar” to that of the appellant.   However, it followed that the appellant’s proposed care arrangements were rejected by the Judge.  Hence the appeal to this Court.

[8]      Initially the appeal was brought in a way that has caused me some concern. The appellant argued that the Judge had failed to interpret the existing parenting order, and had instead wrongly varied that order when no application for variation had been made.  Other arguments were made about other issues that were abandoned once the appellant instructed new counsel.

[9]      The appellant has only recently engaged new counsel.  This has resulted in a reframing of the appeal and so the filing of fresh submissions.  These were filed on 6

July 2015, that is the day before the hearing.  I make no criticism of counsel for the appellant  in  filing  the  late  submissions  because  they have  gone  a  long  way to identifying the real issues in the appeal.  Those issues were in my view obscured by the submissions filed by former counsel.  The appellant is also to be commended for abandoning the arguments that he did.

[10]     Whilst the appointment of new counsel resulted in a far more responsible attitude being taken to the appeal, the late filing of the new submissions did create some difficulties because the respondent is self-represented.   The new legal submissions essentially argue that the Judge exceeded his jurisdiction when he dealt with the one disputed matter following the settlement conference in the way that he did.  Part of that argument included the submission that the Judge had failed to give reasons for the decision he made on the varied form of order (h)(v).

[11]    It is difficult for self-represented lay litigants to deal with questions of jurisdiction and the related administrative law issues that such questions raise.   It would be especially difficult for a lay litigant to do so in circumstances where the issue has only been brought to her attention the day before the appeal hearing.  This is why when the appeal commenced I indicated to the parties that there would be an adjournment of the appeal to avoid prejudice to the respondent.1

[12]     However, I was aware that this was an appeal from a decision of the Family

Court made in September 2014 and I wished to avoid unnecessary delay if possible.2

Therefore I explained the appellant’s argument to the respondent.   I indicated my view that this seemed a reasonably strong argument.   I also explained to the respondent that the likely outcome of the appeal if the appellant’s argument were accepted would be that the matter would be sent back to the Family Court for it to be reheard.  I advised the appellant that if the appeal were to continue in this Court it was likely that she would need legal counsel because of the legal complexity of the issues that the appeal raised regarding the scope of the Family Court’s jurisdiction.  I then stood the matter down for the appellant to take instructions, and then for the appellant’s lawyer to confer with the respondent.

[13]     When I came back to Court I was advised by counsel that the appellant would be content if I dealt with the appeal today with the matter being referred back to the Family Court.   I then spoke to the respondent to ensure that she understood the

implications of what had been proposed.  She too was agreeable to the matter being

1      The respondent had indicated at the beginning of the appeal that she wanted it adjourned because of the issues raised in the applicant’s new submissions.

2      Section 4(2) of the Care of Children Act 2004.

remitted back to the Family Court.  I explained to her that this involved me allowing the appeal.

[14]     I have considered this matter very carefully.  As the appeal was presented to this Court there was an argument about whether the Family Court Judge had been asked to interpret the meaning of the parenting order, or whether he was being asked to vary that aspect of the order as set out in (h)(v) of the order.

[15]     Counsel for the appellant has stated in submissions that the Care of Children Act does not give a Family Court Judge jurisdiction to interpret existing Family Court orders.   I agree with that view.   Essentially, if a Family Court Judge was invited to do that, he or she would be asked to make a declaratory judgment on an order made either by the same Judge or by another Judge of the Family Court. Family Court Judges do not, in my view, have jurisdiction to make declarations on the legal meaning of existing orders.

[16]     If a Family Court Judge is confronted with a Court order, the meaning of which is unclear, and which is causing the parties difficulty, the Family Court Judge can deal with the matter by using his or her powers to vary the order so that the new order overcomes the difficulties of the old order by making it clear its purpose and intent, and what the parties are to do in compliance with it.  I am of the view that insofar as the Family Court Judge may have purported to interpret the existing order, he acted ultra vires.

[17]     On the other hand, if his conduct is viewed as him varying the existing parenting order I consider that this was done in a procedurally irregular manner.  The change to the order happened after a settlement conference.  It was made without the parties having the opportunity to attend a hearing on the proposed change.

[18]     Section 46Q of the Care of Children Act sets out the powers of a Family Court Judge at a settlement conference.  It is clear to me that a Family Court Judge can only make orders at a settlement conference with the consent of the parties.

[19]     Rule 416Y of the Family Court Rules 2002 sets out what is to occur at settlement conferences.

416Y   Settlement conference

(1)       Under section 46Q of the Act, the purpose of a settlement conference is to enable a Judge to—

(a)       ascertain whether any or all of the issues in dispute between the parties can be settled; and

(b)      settle those issues.

(2)      Rules 178 to 180 do not apply to a settlement conference under this

Part, except that—

(a)      rule 178(3) and (4) applies; and

(b)      rule 179(3) applies.

(3)       A Judge may, on request by a party, permit any person to attend a settlement conference as a support person for that party, and the Judge must agree to such a request unless he or she considers there is a  good  reason  why  the  named  support  person  should  not  be permitted to be present.

(4)       At the conclusion of a settlement conference the Judge may make any direction that he or she thinks fit and must do 1 or more of the following:

(a)      make  a  consent  order  (under section  46Q(3) of  the  Act)

settling some or all of the issues in dispute:

(b)      direct that the application proceed to a hearing, but only if—

(i)        the Judge is satisfied that all the issues in dispute between   the   parties   cannot   be   settled   at   the settlement conference; and

(ii)      the Judge has indicated to the persons attending the conference that he or she has formed that view:

(5)       If  the  Judge  directs,  under  subclause  (4)(b),  that  the  application proceed to a hearing,—

(a)       the Judge may do any of the relevant things referred to in rule 175D(2), and may also do anything referred to in rule

416Z(2); and

(b)       if the Judge directs also that a directions conference be held, the directions conference must be convened, if reasonably practicable, within 4 weeks after the settlement conference.

[20]     At  the  conclusion  of  a  settlement  conference,  the  Judge  may  make  any direction that he or she thinks fit and must do one or more of the actions set out in r 416Y(4).

[21]     Clearly the  fact  that  the  parties  could  not  agree  on  the  matter  that  was covered by the order (h)(v) meant that the Judge could not make orders by consent. 3

This left the Judge to deal with the matter under r 416Y(4)(b).  There is nothing in the minutes issued by the Judge following the settlement conference on 22 August

2014 that suggests to me that he has acted in accordance with r 146Y(4)(b) or with the  general  requirements  of  procedural  fairness.    The  Judge  made  no  specific direction in terms of r 416Y(4)(b), nor did he make any of the consequential directions under r 416Y(5) that might follow a direction under r 416Y(4)(b).   I consider that once he was aware the issue regarding order (h)(v) was not going to settle, r 416Y(4)(b) required him to make a direction about what was to happen next.

[22]     Once a matter has not settled at a settlement conference the procedures in r

416Y appear to me to be as follows.   A Judge directs under r 416Y(4)(b) that a disputed application proceed to a hearing; which brings r 416Y(5) into play.  Under r 416Y(5)(a) the Judge “may” do anything referred to in r 175D(2) and r 416Z(2). Rule 175D(2) would not be relevant here.  There is nothing in that rule that I can see would apply to how the Judge determined the dispute before him.   Rule 416Z(2) would also not be relevant as there is nothing in that rule that would cover what occurred  here.     Rule  416Y(5)(b)  empowers  a  Judge  following  a  settlement conference at which there remain disputed issues to direct a directions conference. No directions conference was directed in this case so this rule would seem not to be relevant.  Thus, there is nothing that I can see in either r 416Y, or the other rules that r 416Y brings into play that would have permitted the type of decision-making that occurred in this case.

[23]     Further, in the absence of procedural rules that authorised what occurred, I consider that in terms of the general law to determine the variation of order (h)(v) without giving the parties the opportunity to be heard at a hearing before the Family

Court was a breach of natural justice.

3      See r 416Y(4)(a).

[24]     One possible way in which a decision on the papers could be made is under r

416Z(4).  Rule 416Z(4) permits a Judge to order that issues in dispute be determined by a “submissions-only hearing”.  However, this rule is not one of the available rules that directly follow a settlement conference under r 416Y.  The fact that r 416Y(5)(a) and (b) make specific reference to certain rules and events indicates to me that when it comes to resolving matters that have not been settled at a settlement conference the intent of the rules was that only those direction making powers specified in rule

416Y(5)(a) and (b) would be available to a Judge.  Thus, other powers, such as those contained in r 416Z(4) are outside the scope of what a Judge can do under r 416Y(5).

[25]     However,  I note that  had  a directions  conference been  directed (under r

416Y(5)(b)) then under r 416Z, which governs directions conferences, r 416Z(4) permits a Judge at a directions conference to direct a “submissions-only” hearing. Further r 416Z(4) brings r 416ZG into play; under this rule a Judge may direct a submissions-only hearing if satisfied of certain factors.  Rule 416ZG(2) provides that at a “submissions-only” hearing the matters to be determined must be decided on the basis of “submissions (written or oral)…”.

[26]     So it may be possible for a Judge at a settlement conference where there are outstanding issues that are still in dispute to order a directions conference under r 416Y(5)(b), and then at the directions conference to make orders under r 416Z(4) and r 416ZG(2) that the hearing be by way of written submissions only.  However, this would entail a staged approach with the Judge exercising discrete judicial discretions  along  the  way.    What  has  occurred  here  did  not  entail  the  Judge exercising the procedural rules in this way.  Here there has been a truncating of the procedural rules that allow for the disposition of unresolved issues at a settlement conference.

[27]     Further, the Judge’s substantial decision in the form of the order as disclosed by the minute of 23 September 2014 simply states the result that he had reached without him giving any reasons to explain that result.   This is another procedural error that would warrant allowing the appeal and sending the matter back to the Family Court.  Whilst the extent of the reasons for a decision can vary according to the subject matter, where a decision on an opposed matter will be viewed as adverse

by one of the parties and against the interests of the subject child, I consider that some reasons should be given to explain the outcome.  Otherwise it can create the impression that the outcome has been reached arbitrarily.4

[28]     I am also satisfied that given the manner in which the decision was reached it would have been even more important than otherwise for reasons to be given for preferring one parent’s view over that of the other parent.  The absence of the parties and their counsel from a hearing meant that when the Judge’s decision became available to them neither of them would have known why it was that he reached the conclusion that he did.  This is in contrast to their position had they appeared before him and there was some exchange between bench and bar.    Given the impact the decision had on S’s interests I consider that some reasons were required so as to explain his decision to the parties.

[29]     It is clear to me that the issue of the handover of S at the end of the summer holiday period is an issue that has been of real concern to the parties.  It is an issue that raises concerns as to what is in S’s best interests.   Since the parties have not been able to reach any agreed position, it is something that is going to have to be determined at a hearing.  This in turn requires some thought to be given to the form such a hearing will take.  That could be achieved by the Family Court ordering a directions conference under r 416Z.  At such a conference the parties will have the opportunity to address the Family Court on their views on the form of the hearing.

[30]     My understanding of reading the parties’ submissions is that one of the key aspects of their concern regarding the timing of the handover at the end of the summer holiday period is the fact that depending on whose calendar is adopted, there will be an impact on how much time S spends with her father at a time when her step-siblings  are  also  present.    The  appellant  has  set  those  concerns  out  in  his affidavit of 4 March 2014 and 19 August 2014.  The respondent has in turn set out her position in her affidavit of 10 March 2014.  When the Judge reached a view on how order (h)(v) should be re-framed he never mentioned the matters that each party had raised in his or her affidavit evidence.  These are matters that will need to be

addressed in the Family Court.  Further I consider that they may well benefit from

4      See Blom v MacKay [2005] 1 NZLR 123 (HC); and B v B [2008] NZFLR 1083 at [52].

having the input of lawyer for the child.  Given the difficulties the parties have had in reaching an agreement on this point, it may well be beneficial that S’s voice, through the submissions of lawyer for the child, is also heard clearly by the Family Court.  The crux of the issue being whether it is in her best interests that she spends time with her father at the same time as her step-siblings are present in the home. As matters stand, the step-siblings visit S’s father and their mother on alternative weekends.  If S is with her father at a time when the step siblings are not present this may have a detrimental impact on her.  On the other hand she may benefit from the one on one attention from her father that is likely to result if she sees him when the step-siblings are not present.  Until this issue is fully examined it is hard to see what outcome would be in her best interests.  I suspect that an outcome that allows her a measure of both would be best, but I was told by counsel that the rigidity of the present orders would not allow for such flexibility.   Whether that is so or not is another matter that can be properly canvassed in the Family Court.

[31]     I am satisfied that: (a) the procedurally incorrect and truncated approach to determining the disputed matter; and (b) the absence of reasons have led to the judge exceeding his jurisdiction.  This has resulted in material prejudice to S and to the parties.  Further, I am satisfied that the procedural irregularities are not something that can be cured by this Court on appeal.

[32]     It follows, therefore, that I am satisfied that the appeal must be allowed and the matter sent back to the Family Court to be determined in accordance with the provisions of the Care of the Children Act, the Family Court Rules and the law as I have found it to be.

[33]     There is another issue that has arisen which relates to the consent orders that were made on 25 August 2014.  This is alluded to in the points on appeal dated 8

January 2015 at paragraph [3] where it is said “the learned Family Court Judge erred in failing to direct whether the text of the parenting orders or the attached calendar should take precedence in the event of discrepancy.”  The parties have identified for me a discrepancy in relation to the time of a handover as set out in the parenting

order and the attached calendars.5    I indicated to the parties that in my view where there was a discrepancy between the parenting order and the attached calendar, then the body of the order should be paramount.  The parties indicated to me they found that helpful.   I can now record that by consent they agree that where there is a discrepancy in a time shown in the attached calendar and in the parenting order, that it is the time specified in the body of the sealed parenting order that should prevail.

[34]     At the conclusion of the hearing the respondent sought costs.  I advised her of the general rule that lay litigants are not entitled to seek costs, and that I saw no

reason in this case to depart from the general rule.6

5      The discrepancy only became apparent after the orders were sealed.

6      Official Assignee v Registrar of High Court, Christchurch [1996] 2 NZLR 438 (CA).