FB v TW

[2015] NZHC 2129

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 COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-296 [2015] NZHC 2129

IN THE MATTER

of an appeal pursuant to the Care of

Children Act 2004

BETWEEN

FB Appellant

AND

TW AND HM Respondents

Hearing:	2 September 2015
Counsel:	Appellant in person C J Dellabarca for Respondents R G Cochrane for Child
Judgment:	3 September 2015

RESERVED JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is

4.50 pm on the 3rd day of September 2015

Solicitors:           Wellington Family Law, Wellington, for Respondents

Family Law Specialists Ltd, Porirua, for Child

Copy to:            FB, Appellant

FB v TW [2015] NZHC 2129 [3 September 2015]

[1]      Ms B sought the Family Court’s assistance in facilitating contact between her and her grandson, S.1    Although there had been contact between them in the past, Ms B’s perception was that her relationship with S’s parents (her son and daughter- in-law) had deteriorated to the extent that they were unable to continue to make appropriate arrangements between themselves.

[2]      I mention at the outset that S and his parents are, to use Mr Cochrane’s phraseology, an intact family unit.  In other words it is only through Ms B’s actions that S’s life has become the subject of Family Court litigation.

Background

[3]      Ms B’s status as S’s grandmother means that she is not entitled, as of right, under the Care of Children Act 2004 (the COCA) to apply for a parenting order (through which court ordered contact could occur).  She was required to apply for leave under s 47 of the COCA, which she did.   For reasons that  I struggle to understand she refused to attend a settlement conference and the matter was instead scheduled to a hearing on 3 February 2015.

[4]      An oral hearing did not occur on 3 February because Ms B said she had not received Mr Dellabarca’s submissions in time.  Although Judge Ullrich QC offered to assist the parties to work out some contact arrangements between themselves on that day, Ms B again declined.  So the Judge adjourned the hearing in order to give Ms B time to consider and respond to Mr Dellabarca.  Following receipt of further submissions from Ms B the Judge determined the application for leave on the papers. Essentially she held that although Ms B met the (judge-made) threshold for such applications, it was not in S’s best interests for leave to be granted.

[5]      Ms B then filed the present appeal against that decision.  Mr Cochrane was reappointed as counsel for the purposes of the appeal.

1      The names of the parties and the child have been anonymised in this judgment.

Is there jurisdiction to determine the appeal?

[6]      The parties proceeded on the basis that she was entitled to file the appeal.  It appears no one turned their mind to s 143 of the COCA which limits appeals from certain orders made or declined under the Act.  Section 143 relevantly provides:

Appeals to High Court

(1)       This subsection applies to a decision of a Family Court or District Court, in proceedings under this Act (other than criminal proceedings), to—

(a)      make or refuse to make an order (other than an interlocutory or interim order); or

(b)      dismiss the proceedings; or

(c)      otherwise finally determine the proceedings.

…

(3)       A party to proceedings under this Act in a Family Court or District Court in which an interlocutory or interim order is made, or a child to whom those proceedings relate, may, with the leave of the Family Court or District Court (as the case requires), appeal to the High Court against the order.

[7]      The day before the hearing of the appeal I issued a minute referring to the decision in Barker v Cargill and asking whether leave to bring the appeal had been obtained from the Family Court.2   Both Mr Dellabarca and Mr Cochrane responded. Mr Dellabarca submitted that although Barker was also a decision involving grandparents seeking leave under s 143(3), it was distinguishable because the denial of leave had the effect of finally determining the proceedings.  He said that the fact

that the leave decision had that effect meant that leave to appeal was not required.

[8]      I acknowledge that the distinction drawn by Mr Dellabarca was raised as a possibility by Baragwanath J at [9] of his decision in Barker.  I also acknowledge that there is “finality” in a decision declining leave.   But I am nonetheless not

attracted by that distinction.

2      Barker v Cargill [2007] NZFLR 1108 (HC).   The requirement for leave was noted again by Andrews J in her judgment on the appeal (following the grant of leave by the Family Court) itself: Barker v Cargill (2007) 26 FRNZ 641 (HC).

[9]      On  one  analysis,  an  application  for  leave  is  an  interlocutory  application within the definition of that term in r 8 of the Family Court Rules 2002, namely:

… an application in … intended proceedings for an order or a direction relating to a matter of procedure or for some relief ancillary to the orders or declarations sought in the …  intended proceedings; and

[10]    Here, the “intended proceeding” is the parenting order proceeding.   An application for leave is an application for a procedural order or direction (or, alternatively, an application for an order or direction ancillary to the intended parenting order proceeding).

[11]     As well, the proposition that the nature of an application depends on its outcome (if an application for leave to apply for a parenting order is granted it is an interlocutory application  but if it is declined then it is not) seems to me to be illogical.

[12]     Nor do I consider that the refusal of leave can properly be viewed as a decision to “dismiss” or “otherwise finally determine” the proceedings.   That is because there are no “proceedings” to be dismissed or determined unless or until leave is granted.

[13]     There is authority which supports the views just expressed.  In Tait-Jones v Taylor-Jones, a testamentary promises case concerning whether a refusal of leave to appeal was a “dismissal or final determination” of proceedings, very similar issues were fully considered by Gendall J.  It is worth setting out his reasoning in full:3

Ms Cull QC submits that the decision of the Family Court Judge not to grant leave was an order which finally determined the appellant's proceedings. As a consequence, she argues that there was an absolute right of appeal pursuant to s 5A of that Act. As I have said the appellant had originally argued, when the application for directions came on for hearing before Doogue J, that the refusal to grant an extension of time for commencement of the proceedings was  an  order  or  final  determination  of  the  proceedings,  but  she  was compelled to accept that it was in truth an interlocutory order which required the leave of the District Court. Such concession arose when it became apparent that the appellant had grave difficulties in respect of the issue of security for costs.

3      Tait-Jones v Taylor-Jones (1999) 13 PRNZ 308 (HC) at 311-312.

The starting point must be the statutory provisions, without which there is no appeal or appeal procedure. The right of appeal whilst given under s 5A of the Act, is to be dealt with under Part V  of the District Courts Act 1947. Section 71A(2) requires that leave must be given where the decision is an “interlocutory order”.  An interlocutory order is defined in s 71 of the Act as “a decision or order made by the Court in relation to an interlocutory application”. Section 2(1) describes an interlocutory application as:

“any application to the Court in any proceeding or intended proceeding  for  an  order  or  a  direction  relating  to  a  matter  of procedure or for some relief ancillary to that claimed in a pleading;”.

(Emphasis added.)

In my view it is abundantly clear that the application for leave to appeal is an interlocutory application as defined by s 2  of the District Courts Act 1947. It is an application relating to a matter of procedure or, more particularly, some relief ancillary to that claimed in a pleading. Indeed it is hard to see how if, as is acknowledged, the application for leave to extend the time for filing a pleading is an interlocutory application, that it could otherwise be the case with an application for leave to appeal.

Apart from the statutory definition, it would be difficult to describe a refusal to grant leave as an “order”. This is because the refusal is no more than the Court declining to give permission to a party to adopt a desired procedure. The well-known dictum of Lord Halsbury LC in  Lane v Esdaile [1891] AC 210, 212 (HL) is relevant:

“it seems to me that to give an appeal in this case would defeat the whole object and purview of the order or rule itself, because it is obvious that what was there intended by the Legislature was that there should be in some form or other a power to stop an appeal — that  there  should  not  be  an  appeal  unless  some  particular  body pointed out by statute … , should permit that an appeal should be given. Now just let us consider what that means, that an appeal shall not be given unless some particular body consents to its being given. Surely if that is intended as a check to unnecessary or frivolous appeals it becomes absolutely illusory if you can appeal from that decision or leave, or whatever it is to be called itself. How could any Court of Review determine whether leave ought to be given or not without hearing and determining upon the hearing whether it was a fit case for an appeal?”

And if there is a power to appeal where leave has been refused, why could it not be said the respondents in this case had likewise a power to appeal under s 5A of the Act if leave were granted? The Lord Chancellor alludes to this in Lane v Esdaile when he goes on to say, at p 212:

“because if there is a power to appeal when the order has been refused, it would seem to follow as a necessary consequence that you must have a right of appeal when leave has been granted, the result of which is that the person against whom the leave has been granted might appeal from that, … ”

That is why the refusal to grant leave cannot be said to be an “order in any proceedings under” the Act, or a final determination, pursuant to s 5 of the Act. If it be an “order” at all, it is only an interlocutory order by virtue of the definition provisions of the District Courts Act 1947.

It is of course correct that Meates v Taylor (ibid) and Seamar Holdings Ltd v Kupe Group (ibid) were cases dealing with truly interlocutory matters in the sense that the substantive proceedings between the parties continued despite the orders made. I do not consider that that detracts from their authority. Although there may be difficulties in determining what is a final and what is an interlocutory order, as noted earlier by Doogue J, nevertheless in nevertheless  in  Matthews  Corp  Ltd  v  Edward  Lumley  &  Sons  (NZ) Ltd (1994) 7 PRNZ 591 the majority of the Court of Appeal followed the long-standing line of authority that an order to strike out a proceeding is not a final judgment but an interlocutory one, notwithstanding that the consequences of it bring proceedings to an end. So, in the present case I do not think it is open to the appellant to argue that whilst the dismissal of the application  to  extend  time  for  issuing  proceedings  was  an  interlocutory order, yet the refusal to grant leave to appeal against such order fell into a different category simply because she can go no further. In truth, as was noted by Lord Halsbury LC the refusal to grant leave falls into the category of a decision to decline consent to proceed to appeal, rather than the making of a final order the granting of which may afford a further right of appeal. The deliberate exclusion of the opportunity for the High Court to grant special leave may be an indication of legislative intention that the right of appeal under s 5A (which in circumstances such as these is akin to an application for special leave to appeal) cannot apply where the consent or leave of the District Court is not given in respect of any interlocutory order. Whether the decision can be accurately described as a “interlocutory order” under the District Courts Act 1947, or simply the exercise of a discretion in declining to give consent to appeal, (as described in Lane v Esdaile) does not matter, on final analysis.

The decision or exercise of the discretion by the Family Court declining to grant leave was made pursuant to the provisions of the District Courts Act

1947 which, although obviously having the effect of precluding the pursuit

of any proceedings under the Law Reform (Testamentary Promises) Act

1949, could not in my view be said to have been an order that finally determined or dismissed proceedings under that Act. The proceedings never

obtained their own life force as the Court did not originally exercise its

discretion to grant leave to extend the time for filing such proceedings. They were never commenced.

[14]     I agree.  It matters not whether one analyses the issue in “interlocutory order” or in “final determination” terms; the outcome is the same in either event.     An application for leave to commence a proceeding is (at best) interlocutory in nature; it is certainly not, itself, a “proceeding”.   Accordingly, before an appeal against a refusal to grant leave to apply for a parenting order may be brought, leave of the Family Court under s 143(3) of the COCA is required.  As it was not obtained here, this Court has no jurisdiction.

Merits

[15]     In case I am wrong in my jurisdictional conclusions, however, I record that I

would have dismissed the appeal, for the reasons briefly outlined below.

[16]     First, a decision granting or declining leave under s 47 is, in my view, an exercise  of discretion;  the fact  that  it  may be  overlaid  with  an  “evaluation” of relevant ss 4 and 5 considerations does not alter that.  Accordingly the starting point would be that the onus is on Ms B to show that Judge Ullrich erred in law or principle,  took  account  of  irrelevant  considerations,  failed  to  take  account  of  a

relevant consideration; or that the decision is, on some other basis, plainly wrong.4

That threshold is a high one.

[17]     Secondly, Ms B’s principal criticism of the leave decision was that having determined that the “threshold” for leave was met,5 the Judge then delved into, and placed  too  much  weight  on,  the  merits  of  Ms B’s  (proposed)  application  for  a parenting order.

[18]     From my own reading of the judgment it is apparent that the substantive merits did, indeed, weigh heavily with the learned Judge.  But that is not uncommon in relation to applications for leave.   Moreover, in all decisions made under the COCA umbrella, it was necessary for the Court to consider the matters set out in ss 4 and 5.  And in the case of an application for leave to apply for a parenting order it would be facile for the Court simply to focus on the issue of leave without considering both what the consequences of the grant of leave might be and how the proposed substantive application might affect the child concerned.  To grant leave to bring an application which (if pursued and granted) would be contrary to the best

interests of the child would run counter to the principles and purposes of the COCA.

4     Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1, at [32]. In that respect it is interesting to note that in H v L [2015] NZCA 153, [2015] NZFLR 547 at [25] (an appeal against a substantive parenting order under the COCA) the Court of Appeal has very recently said:

Decisions  in  relation  to  parenting  orders  involve  the  exercise  of  judicial
discretion, guided by the provisions of ss 4 and 5 of the Act.

5      The relevant threshold applied by the Judge was that which was affirmed in Barker v Cargill

above, n 2.

[19]     Not only can I discern no error in Judge Ullrich’s approach but its correctness seems to me to be confirmed by Mr Cochrane’s more recent advice that attempts to continue  the  litigation  by way  of  this  appeal  are  adversely affecting  S  and  his feelings for Ms B.

[20]     Although Ms B also raised some Court process concerns I do not propose to consider them in detail here.  Suffice it to say that my perception of the matter is that the Judge (and other Family Court judges before her) have bent over backwards to be fair to Ms B; I can see no prejudice to her whatsoever in the manner in which the matter was dealt with.

[21]     And  while  much  of  Ms B’s  present  animus  appears  to  be  directed  at Mr Dellabarca, he, too, appears to have consistently tried to deal with Ms B fairly and helpfully.  The real difficulty, as I perceive it, is that she has a tendency to box at shadows and to see obstruction and difficulty where there is none.  I merely record that Mr Dellabarca reiterated today his clients’ willingness to engage with Ms B (albeit through him or some other third party) and to help her resume contact with S. The overlay of a Court process can add nothing to that other than complexity, cost and distress to S.

[22]     In formal terms, I dismiss the appeal for want of jurisdiction.  For the reasons

I have also briefly given, it would not, in any event, have succeeded.

“Rebecca Ellis J”