DKP v MJM
[2017] NZHC 109
•9 February 2017
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 NEW PLYMOUTH REGISTRY
CIV-2017-443-5 [2017] NZHC 109
IN THE MATTER of the Care of Children Act 2004 BETWEEN
DKP Appellant
AND
MJM Respondent
Hearing: on the papers Counsel:
G J Wilson for Appellant
R M Webb for Respondent
K A McKenzie for the childrenJudgment:
9 February 2017
JUDGMENT OF ELLIS J
I direct that the delivery time of this judgment is
12.15 pm on the 9th day of February 2017
DKP v MJM [2017] NZHC 109 [9 February 2017]
[1] On 16 December 2016 Judge Barkle in the Family Court at New Plymouth made guardianship orders under s 46R of the Care of Children Act 2004 (the COCA) permitting the parties’ three children (J, X and A) to relocate permanently to Brisbane with their mother (M) “on or after 14 January 2017”.1 The children’s father, P, wishes to appeal that decision.
[2] The principal reasons for permitting the relocation were (in no particular order):
(a) M’s demonstrable job opportunities in Brisbane (and the absence of them in New Plymouth, where she is presently unemployed), and the consequent economic benefits for the family;
(b)the fact that M has always been the children’s primary care-giver and the parent with whom they had the closer and more dependent emotional relationship (although all three regarded their relationship with their father as important);
(c) the improved family support for M and the children in Brisbane;
(d)the respective parenting capacities of M and P (P is still suffering the significant and long-term after-effects of a 2011 car accident);
(e) the wishes of X and A, who want to relocate (whereas J wants to stay in New Plymouth);
(f) the agreement between the parties that it was not in the children’s
interests to separate them (and J’s concurrence with that view); and
(g)the beneficial effect of distance on the parties’ conflicted relationship and the ensuing benefits to the children; and
1 MJM v DKP [2016] NZFC 10544.
(h)M’s willingness to ensure that the children returned to visit their father in the school holidays and her commitment to using the child support paid by him for that purpose.
[3] On 25 January 2017 P made a without notice application for a stay of the relocation order, pending his appeal from Judge Barkle’s decision. A notice of appeal was filed along with the stay application.
[4] The application was referred to me as Duty Judge. In the minute I issued I
said:
I accept that, in the event that Mr [P's] appeal were to succeed, it would be difficult for this Court on appeal to "undo" a relocation that has already occurred. I do, however, have some reservations about granting a stay in the circumstances disclosed on the (limited) material before me. Having read the Family Court judgment, the grounds of appeal appear to me to be, at best, thin.
I am therefore only prepared at this stage to grant an interim stay on strict terms, which are as follows:
(a) there is to be a telephone conference with me at 4 pm on Thursday 2 February 2017 (Mr Wilson and Ms [M] or her counsel are to attend);
(b) the interim stay will expire at 5 pm on Thursday 2 February
2017 unless renewed by me at the end of that telephone conference;
(c) Mr Wilson is to arrange immediate service of
(i) the without notice application, (ii) the notice of appeal, and
(iii) this minute
on Ms [M] and to file an affidavit of service when that has been effected; and
(d) Mr Wilson is to file in Court and serve on Ms [M] better particularised points on appeal by 5 pm on Tuesday
31 January 2017. He is to specify what aspects of Ms [M]'s
evidence is said to be “unreliable” or untrue and what basis he has for alleging that (other than that her evidence
conflicted with that of Mr [P]).
Once Ms [M] has been served she is advise the Court of the telephone number by which she may be connected to the telephone conference. It
would obviously be of some assistance if she were able to advise the Court in advance of the conference of her position in relation to the stay.
[5] On receipt of the application and notice of appeal Ms M instructed counsel, Ms Webb. She filed an appearance under protest to jurisdiction on the grounds that under s 143 of the COCA there is no automatic right of appeal against orders made under s 46R. Leave is required. Mr P then filed an application for leave.
[6] At the subsequent telephone conference with me (which in fact took place on
3 February 2017) I was advised:
(a) that Ms M’s house was on the market and several offers were pending; and
(b)that Ms M had the offer of a lease in Brisbane, but that she had managed to obtain the agreement of the landlord to hold it open until Thursday 9 February; and
(c) she was planning to move to Brisbane in the first week of March.
[7] Because there was at least some prospect that the question of leave would render the issue of a continuation of the stay nugatory, I directed (essentially by consent) that:
(a) the parties were to file submissions on the leave application by 5 pm on Tuesday 7 February;
(b) I would determine the application on the papers as a matter of urgency
(given Ms M’s circumstances); and
(c) the interim stay would continue until I had done so, and would need to be revisited if leave was granted.
[8] I also allocated an urgent, provisional, hearing date for the substantive appeal of 1 March 2017.
[9] This judgment therefore deals with the question of leave.
Principles
[10] The leading pre-COCA authority makes it clear that when a relocation decision is made as part of a decision about custody and access, it is appealable as of right.2 But in a case such as the present, where (it seems) M’s application was made
directly under s 46R, leave would appear to be required. In any event, P did not seek to argue that it was not, and I therefore determine the matter on that basis.
[11] The principles governing applications under s 143 for leave to appeal a decision made under s 46R have recently been summarised by this Court in SFB v JEBH as follows:3
(a) the requirement for leave suggests that Parliament intended that some, but not all, decisions under s 46R should be subject to appellate review. The requirement for leave reflects the need for finality in guardianship matters;
(b)because there is no further right of appeal against a decision under s 46R, the court will generally be more willing to grant leave;
(c) where the decision reached by the Family Court has long-term implications for the welfare of a child, leave will be more readily granted;
(d)a decision whether to grant leave must be based on the first and paramount consideration, namely the welfare and best interests of the
child;
2 Wright v Wright [1984] 1 NZLR 366 alt. cit. W v W (1984) 1 FRNZ 37, (1984) 2 NZFLR 335 (CA). That case was concerned with the equivalent to s 143 in the Guardianship Act 1968.
3 SFB v JEBH [2015] NZHC 2897 at [8].
(e) leave will more readily be granted where there is a discernible serious issue to be determined. So disputes that involve “important matters affecting the child” are more likely to justify a grant of leave; and
(f) if the party seeking leave identifies a seriously arguable material error of law or fact, then it is likely that leave will be granted.
Discussion
[12] There can be no doubt that an order permitting a parent to relocate with the children outside New Zealand is an important matter, with potentially long-term implications for the children. The starting point must therefore be in favour of leave. That said, however, the present is not as extreme a case as that which was confronted
by Panckhurst J in ACCS v AVMB.4 There, the relocation concerned was from
Christchurch to London and the access rights of the appellant would have been severely curtailed. Panckhurst J observed that it was unthinkable that a decision by one party to relocate from New Zealand to England should not be susceptible of appeal to the High Court and granted leave to appeal accordingly.
[13] But the concerns underlying that decision are far less acute here. In particular:
(a) M is required to facilitate visits by the children to P in New Zealand in the school holidays (on the basis set out in the Judge’s decision);
(b) P is also able to visit the children in Brisbane; and
(c) there have been very significant advances (since the decision in ACCS, and certainly since the decision in Wright) in terms of the scope for regular electronic contact, and the orders made by the Judge
deal with that.
4 ACCS v AVMB [Parenting Orders] [2006] NZFLR 986 (HC).
[14] And in my view there are a number of other matters that militate against the grant of leave in this case.
[15] First, the intended appeal was not filed until 10 days after the date on which M was permitted to relocate and over a month after the Family Court decision. The relevance of that is twofold:
(a) the fact that M had not already relocated at the time of filing was a matter of happenstance; and
(b)in reliance on the judgment (and in the apparent absence of any application for stay or appeal) M has taken a number of significant steps towards the move, including placing her house on the market (no doubt at some attendant cost) and securing the offer of a lease in Brisbane.
[16] Secondly, the memorandum filed by counsel for the children makes it clear that they are of the view that the relocation issue has been finally dealt with and that they would be hostile to the prospect of its reactivation.5 Ms McKenzie said in her memorandum that “the need for stability in the children’s lives in a situation where there has been an extended period of considerable instability and disruption during the course of the lengthy Family Court proceedings is in my submission relevant.” I agree.
[17] Thirdly, and in terms of J’s opposition to the move, the reality is that he will shortly be 16 and able to make decisions about where he lives for himself. Moreover, it seems clear that he wishes to live with his mother and siblings and that he accepts it would be unrealistic for him to live with his father.
[18] Fourthly, my original view that the grounds of the proposed appeal are thin has not changed. No seriously arguable material error of law or fact is evident even
on the elaborated grounds that were filed subsequent to my original minute.
5 The children do not know about P’s intended appeal. But Ms McKenzie’s recent visit to the children left her with the clear view that they would be very dismayed at any continuation of the matter.
[19] More particularly, the essence of the articulated grounds is P’s criticism of the Judge for accepting as reliable various aspects of M’s evidence. Many of the examples of “unreliability” given demonstrate only that M either accepted various propositions that were put to her in cross-examination or that there was other evidence before the Judge that was contrary to hers. Moreover, most, if not all, of this evidence concerned matters that were only very tangentially related to where the children’s best interests lay and would be far from determinative of the matter at issue. There is, in my view, nothing to suggest that the Judge did not simply make his own assessment of M’s reliability and credibility based on all the evidence before him in the usual way.
[20] Similarly, the complaint that there was a breach of the rule in Browne v Dunn because M (who was self-represented) did not cross-examine on certain affidavits filed in support of P seems to me to go nowhere.6 In particular:
(a) section 92 of the Evidence Act 2006 makes it clear that the duty is far from absolute;
(b)the point on which it is said the deponents should have been questioned was a relatively minor one (relating to the number of P’s wider family who lived in Taranaki and had been involved in the children’s lives); and
(c) the Judge expressly refers to the affidavits at [36] and [98] and [99] of his judgment.
[21] So notwithstanding any unwritten presumption in favour of leave in a s 46R relocation case, I am not persuaded that leave should be granted here. In particular, I consider that permitting an appeal to be pursued would not be in the best interests of
the children.
6 Browne v Dunn (1893) 6 R 67 (HL).
[22] The application for leave is declined accordingly and the interim stay of execution in relation to the orders made by Judge Barkle is lifted. The hearing
scheduled for 1 March 2017 is vacated.
Rebecca Ellis J
Solicitors: QuinLaw, New Plymouth, for Appellant
Mooney & Webb, New Plymouth, for Respondent
Govett Quilliam, New Plymouth, lawyer for the children