G (CA105/05) v W

[2005] NZCA 359

ANYPUBLICATION OF A REPORT OF THESE PROCEEDINGS MUST COMPLY WITH S 139 OF THE CARE OF CHILDREN ACT 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA105/05

BETWEEN  G (CA105/05) Applicant

AND  W Respondent

Hearing:         15 August 2005

Court:            Glazebrook, O'Regan and Robertson JJ Counsel:  Applicant in person

M L Greenhough for Respondent

Judgment:      18 August 2005 at 9am

JUDGMENT OF THE COURT

The application for special leave to appeal is declined.

REASONS

(Given by Robertson J) [1]     This is an application for special leave to appeal.

Factual background

[2]      The parties are the parents of a son born on 21 March 2000.  In a reserved judgment dated 18 October 2004, Judge G F Ellis noted:

[1] … The history of their problematic relationship has been documented in Court papers starting from the year of their child’s birth and continuing in each year to date.   Mr G has anger and mental health issues.   Ms W has

G (CA105/05) V W CA CA105/05 18 August 2005

terminal health problems.  Over the years each has repeatedly accused the other of various forms of abuse but they have seemed incapable of living separate lives without some degree of involvement. Their history shows they cannot live together but do not seem able to live apart.

[3]      In that judgment, Judge Ellis made an interim custody order in favour of Ms W and an interim access order under supervision in favour of Mr G.  The Judge refused to hear evidence that Mr G wanted to introduce relating to his allegations that Ms W had been violent to the child in the past.  He said he saw no reason to revisit allegations on the basis that they had been the subject of a final judgment of Judge Carruthers in 2001.

[4]      On 16 March 2005, Judge Ellis refused to grant Mr G leave to appeal to the

High Court in respect of those orders.

[5]      Undeterred, Mr G appealed to the High Court at Wellington.  In a Minute of

18 April 2005, Miller J struck out the application for leave to appeal for lack of jurisdiction.   He cited s 31(3) of the Guardianship Act 1968 which at that time relevantly provided:

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

[6]      That provision made it clear that the High Court may hear an appeal against interim orders only with the leave of the Family Court.

[7]      Mr G now seeks special leave from this Court to appeal from Miller J’s decision.

Discussion

[8]      Mr G accepts that the decision of Judge Ellis was of an interim nature, but submits that Miller J incorrectly characterised the nature of his appeal.  He submits that the appeal was from Judge Ellis’s refusal to make a final determination on the question of whether Mr G had been violent towards the child, rather than from the

orders made.  He therefore submits that s 31(3) of the Guardianship Act 1968 does not bar his appeal.

[9]      Ms W supports the decision of Miller J and submits that this Court does not have jurisdiction to grant leave to appeal for the reasons articulated in the High Court Minute.

[10]     Parliament has since repealed the Guardianship Act 1968 and replaced it with the Care of Children Act 2004 which came into force on 1 July 2005.  The position in relation to appeals from the Family Court to the High Court is not altered by the new Act except to provide that a child to whom the proceedings relate may also lodge an appeal.

[11]     The relevant statutory provision is in s 143(3) which provides:

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.

Conclusion

[12]     We are of the view that Miller J reached the only available decision when he held that the High Court did not have jurisdiction to entertain an appeal.

[13]     It is clear that the decision of Judge Ellis on 18 October 2004 was of an interim nature.  The orders made at [25] were expressed to be interim and the Judge noted at [26] that both parties had substantive custody applications still to be heard. In the subsequent judgment on 16 March 2005, refusing leave to appeal, the Judge again categorised at [3] the earlier decision as “necessarily of an interim nature”.

[14]     Section 143(3) of the Care of Children Act 2004, which is now the applicable statutory provision, is a jurisdictional bar to Mr G’s appeal to this Court.

[15]     We note for completeness that, following a hearing in the Family Court on

17 June 2005, in a further judgment of 11 August 2005, orders were made about the

future progress of the outstanding matters including the allocation of a substantive fixture for three days and for obtaining various reports and evidential requirements relating thereto.

Result

[16]     This Court has no jurisdiction to entertain this application and special leave to appeal is accordingly declined.

[17]     As Ms W is legally aided, Ms Greenhough properly made an application for costs, but in all the circumstances we are not satisfied that an order is appropriate.

Solicitors:

Margaret Powell and Wendy Davis, Wellington, for Respondent