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…

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 FB v TW

Details

AGLC: FB v TW [2015] NZHC 2129
Case: [2015] NZHC 2129
Decision Date: 3 September 2015

CaseChat Overview and Summary

Ms B sought leave to apply for a parenting order under the Care of Children Act 2004 to facilitate contact between herself and her grandson, S. The Family Court refused to grant leave, and Ms B appealed to the High Court. The appeal hinged on the jurisdictional question of whether leave from the Family Court was required to bring the appeal, as well as the merits of the Family Court's decision. On the jurisdictional issue, the Court held that an application for leave to apply for a parenting order is an interlocutory application, and leave from the Family Court is required to appeal such a refusal. As Ms B had not obtained such leave, the Court lacked jurisdiction to hear the appeal. Even if the Court had jurisdiction, the appeal would have been dismissed on the merits. The Family Court's decision to refuse leave was an exercise of discretion, and Ms B had not shown that the decision was plainly wrong. The Court noted that the merits of Ms B's proposed parenting order application had properly been considered in assessing whether leave should be granted.

In summary, the High Court held that it lacked jurisdiction to hear Ms B's appeal against the Family Court's refusal to grant leave to apply for a parenting order, as leave from the Family Court was required but not obtained. Even if the Court had jurisdiction, the appeal would have been dismissed on the merits, as the Family Court's exercise of discretion in refusing leave was not shown to be plainly wrong. The High Court observed that the Family Court had properly considered the merits of Ms B's proposed parenting order application in assessing whether leave should be granted.

Orders