D v C

[2001] NZCA 324

IN THE COURT OF APPEAL OF NEW ZEALAND CA76/01

BETWEEN	D
Appellant

AND	C
Respondent

Hearing:	20 August 2001
Coram:	Gault J Thomas J Tipping J
Counsel:	A P Duffy QC in support of the Application
D A T Hollings for Appellant V Ullrich QC for Respondent
Judgment:	20 August 2001

JUDGMENT (NO 2) OF THE COURT DELIVERED BY GAULT J

1. In a judgment of this Court delivered on 19 March 2001 an order was made granting leave to appeal to this Court on a question of law arising under s120(4) of the Family Support Act 1991 in relation to the making of a departure order under s104 and s105 of that Act.  The question of law identified is whether it is appropriate under the Act to make parental liability proportional to income where a departure order is made.

2. Application now has been made by Auckland Women Lawyers’ Association (in effect) to intervene and make submissions at the hearing of the appeal.  The application seeks also to have the costs of the Association met from public funds under s99A Judicature Act 1908.

3. The application has been consented to on behalf of the respondent but is opposed on behalf of the appellant.  Mrs Hollings, counsel for the appellant did not appear at the hearing but filed helpful written submissions opposing the application.

4. Although not in affidavit form as suggested in Drew v Attorney-General CA189/00, judgment 15 March 2001, the written submissions prepared by Ms Duffy QC supported by her oral argument conveyed how the applicant Association considers the Court may be assisted by submissions presented on its behalf.  No attempt has been made to disguise the fact that the Association seeks to support the principle identified in the judgment under appeal.  Support for a proportionality principle rests on what is said to be the reality that women are still the greater proportion of custodial parents and have disproportionately lower income.  Accordingly, the principle is seen to advance the position of women and consequently of children in their custody. 

5. The written submissions outline how that viewpoint will be advanced before the Court as follows:

   The AWLA can draw the Court’s attention to the wider social ramifications of the issue on appeal, the issues which underlie it and the impact these have on all women and children, whereas the parties are likely to bring a more restricted focus to the appeal.  Its role as amicus would be of benefit to the public.

   The AWLA could provide the Court with an insight into the social aspects of child support and how child support issues are dealt with in other jurisdictions.  It is in a unique position to be able to provide the Court with an overview on the international recognition given to preserving children’s material quality of life, wherever that is possible, through the imposition of legal obligations to pay child support.  How other jurisdictions cope with the disparity of income of separated parents and the impact this can have on child support would assist the Court in determining whether or not the adoption of a principle of proportionality is, in principle, consistent with the provision of child support under the New Zealand legislation.

6. We were referred to two previous instances in which the Auckland Women Lawyers’ Association was accorded the opportunity of making submissions to this Court.  They were in Ruka v Director of Social Welfare [1996] NZFLR 913 and Z v Z (No 2) [1997] 2 NZLR 258.

7. There is no suggestion that on the argument of the appeal the arguments on each side of the question of law stated will not be fully and competently advanced by counsel for the respective parties.  The case involves essentially issues of statutory interpretation and is unlikely to lead to broad questions of policy of the kind raised in the two previous decisions in which the Association was given leave to make submissions. 

8. Accordingly, we have not been convinced of the need to expand representation before the Court in this matter and we consider that any points which the Association may wish to advance before the Court can be presented through counsel for the respondent.

9. There is a further point of concern arising from the gender emphasis in the proposed intervention.  It is that the Court would (as it did in Z v Z) then have a concern to ensure a balance and a perception of fairness to the appellant.  That would necessitate consideration of the appointment of amicus curiae to rectify any perceived imbalance.  The case does not warrant that additional complexity.

10. While we have given careful consideration to all Ms Duffy’s submissions in support of the application, we have not been convinced that this is an appropriate case on which to give the leave sought.

11. The application, accordingly, is dismissed.

Solicitors

Antony Mahon, Auckland, for Applicant

Treadwell Gordon, Auckland, for Appellant

Lance Clifford Rowe, Wanganui, for Respondent