Green v Brown
[2023] NZHC 1494
•15 June 2023
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2022-409-430
[2023] NZHC 1494
UNDER the Care of Children Act 2004 IN THE MATTER
of an intended appeal
BETWEEN
GREEN
Intended Appellants
AND
BROWN
Intended Respondent
Hearing: 12 June 2023 Counsel:
S N van Bohemen for Intended Appellants M J Bryant for Intended Respondent
Judgment:
15 June 2023
JUDGMENT OF OSBORNE J
GREEN v BROWN [2023] NZHC 1494 [15 June 2023]
The decision
[1] The intended respondent, Mr Brown, is the father of a child who was six years old in March 2022.1 He and the child’s mother separated before the child was born.
[2] The intending appellants, Mr and Mrs Green, applied to the Family Court for a parenting order under s 48 Care of Children Act 2004 (the Act). Their application, as described by counsel at the hearing, was for “regular and reliable contact with [the child], to take place over a weekend, consistent with that which would be expected for grandparents”.2
[3] Judge Shearer declined to make the order and dismissed Mr and Mrs Green’s application (the Decision).3
[4] At the same time the Judge, in the hope the child’s relationship with Mr and Mrs Green could endure and to assist Mr Brown and Mr and Mrs Green to reset their relationship, referred the parties to engage in 12 sessions of communication counselling.4 The Family Court file was to be kept open for the purpose of that referral.
The intended appeal
[5]The Decision was delivered on 30 March 2022.
[6]Mr and Mrs Green had a right of appeal to this Court under s 143(2) of the Act.
[7] Pursuant to r 20.4(2)(b) High Court Rules 2016 the parties were required to bring any appeal within 20 working days after the decision appealed against. In this case that was by 2 May 2022.
[8] On 23 September 2022, Mr and Mrs Green, through their solicitor, filed an interlocutory application for special leave to bring an appeal together with a copy of
1 In accordance with current practice, pseudonyms have been used instead of the parties’ real names.
2 Green v Brown [2022] NZFC 2797 [Decision] at [36].
3 Decision, above n 2, at [78].
4 At [79], directed pursuant to s 46G Care of Children Act 2004 [the Act].
their intended notice of appeal. Mr and Mrs Green invoked r 20.4(3)(b) High Court Rules 2016. For unexplained reasons, the appeal documents were not served on Mr Brown until 3 October 2022.
The Decision summarised
[9] Mr Brown and the child’s mother had a two-year relationship. Mr Brown’s partner was pregnant at the time they separated. The partner predominantly cared for the son in the four years after his birth but tragically took her own life in late-2019.
[10] Thereafter Mr Brown, who already had regular contact with the child, became the child’s full-time carer.
[11] A daughter of Mr and Mrs Green had been a friend of the child’s mother. Mr and Mrs Green had a very close and supportive relationship with the child’s mother and the child.
[12] Although some contact continued between Mr and Mrs Green and the child after the mother’s death, the relationship became strained and ultimately Mr Brown stopped the child’s contact with Mr and Mrs Green (seemingly in early-2021).
[13] Mr and Mrs Green unsuccessfully sought Mr Brown’s co-operation in a mediation process, and in mid-2021 filed their application for a parenting order. The application was opposed. The Court appointed Mr C D Eason, a senior Christchurch family lawyer, as lawyer for child. Mr Eason provided reports in which he concluded there was a very strong bond between father and child, whereas the granting of Mr and Mrs Green’s application would not improve the strained relationship that already existed and would create a situation of long-term disharmony and distrust.
[14] The parties were cross-examined at the hearing in March 2022. Judge Shearer reserved his decision.
[15] In the Decision, Judge Shearer concluded Mr and Mrs Green were clearly good people and well-meaning.5 On the other hand, he found their conduct towards Mr Brown gave rise to a situation in which a parenting order in their favour was not in the child’s welfare or best interests.6 In reaching that decision, the Judge said Mr and Mrs Green had gone about the court proceedings in the wrong way and appeared to lack insight about that.7 His Honour referred to “a number of clear examples where Mr and Mrs Green overstepped the mark, and all in a relatively short space of time”, and then set out six examples.8 The Judge illustrated his finding as to Mr and Mrs Green’s lack of insight by referring to specific passages in their oral evidence.9 The lack of insight gave the Judge no confidence that things would be different in the future were Mr and Mrs Green to have the significant contact with the child that they were seeking.10
The categorisation of Mr and Mrs Green’s relationship with the child
[16] One further aspect of the findings in the Family Court referred to by Mr and Mrs Green is a Minute of Judge McMeeken dated 11 August 2021 (the Minute). Judge McMeeken was dealing with the application made by Mr and Mrs Green for leave to apply for a parenting order under s 47(1)(e) of the Act. The Green had asserted they were the psychological grandparents of the child. In the Minute, Judge McMeeken stated she found the applicants were the psychological grandparents and accordingly granted leave.
[17] Judge Shearer, in the Decision, considered the relationship between Mr and Mrs Green and the child by reference to the concepts identified in s 5(e) of the Act in order to apply the principles relating to the child’s welfare and best interests. The Judge recognised that Mr and Mrs Green arguably fell within the category of “family group, whanau, hapū or iwi”, under principle 5(e) but considered Mr and Mrs Green more accurately were to be described as “family friends”.11
5 Decision, above n 2, at [48], [76].
6 At [78].
7 At [49].
8 At [51].
9 At [60]–[61].
10 At [63].
11 At [67]–[68].
[18] As one ground of the appeal Mr and Mrs Green submit Judge Shearer failed to give sufficient weight to Judge McMeeken’s finding that the Greens were the psychological grandparents.
[19] That ground of appeal involves a misunderstanding of the status of Judge McMeeken’s finding. The Judge’s finding, without the benefit of a hearing, was reached on the papers for the threshold purposes of granting leave to the Greens to bring their parenting order application. It would have been inappropriate for Judge Shearer, as the Judge hearing the substantive application, to attach weight to the threshold ruling. It was for Judge Shearer to reach his decision on the full evidence he had read and heard.
Leave to appeal out of time
[20] In Almond v Read the Supreme Court identified the ultimate question when considering the exercise of the discretion to extend time is what do the interests of justice require.12
[21]The Supreme Court identified considerations relevant to the discretion as:13
(a)the length of the delay;
(b)the reasons for the delay;
(c)the parties’ conduct, particularly that of the applicant;
(d)the extent of the prejudice or hardship caused by the delay;
(e)the significance of the issues raised by the proposed appeal, both to the parties and more generally; and
(f)in some limited cases, the prospective merits of the appeal.
12 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38]. The decision was in relation to 129A Court of Appeal Rules 2005 but applies equally to r 20.4 High Court Rules : see, for instance, Banora v Auckland Council [2022] NZHC 2691 at [6].
13 At [38]‒[39].
Mr and Mrs Green’s proposed grounds of appeal
[22]Mr and Mrs Green assert the Judge placed undue weight on:
(a)Mr Brown’s personal dislike of them and his views about what he perceived as their criticism of his parenting style;
(b)the way the Greens have acted in the proceedings and their lack of insight as to that approach, when the Greens gave evidence as to steps they took to ensure they had a continuing relationship with the child;
(c)the Green’s close relationship being solely with the child’s late mother and not with the father, when the focus ought to have been on the nature of the relationship between the Greens and the child;
(d)the Greens being “close family friends” rather than “psychological grandparents”, despite Judge McMeeken’s finding; and
(e)the position and submissions of the lawyer for child, including after the Decision was issued.
[23]The Greens assert also the Judge failed to give sufficient weight to:
(a)the principle that a child’s relationship with his or her family group, whānau, hapū or iwi should be preserved and strengthened, given the only maternal connection of the child is through the Greens as psychological grandparents, that relationship contributing as an integral part of the child’s identity;
(b)Judge McMeeken’s finding that the Greens were psychological grandparents, having exercised that role since the child’s birth; and
(c)the evidence the child had a stable and consistent relationship with the Greens.
[24] The Greens assert the Decision in the circumstances was not in the child’s best interests.
[25] The Greens assert the Judge also erred in failing to terminate Mr Eason’s appointment, with the consequence that Mr Eason filed reports that:
(a)contained information which conflicted with that presented at the hearing; and
(b)the Judge continued to issue Minutes following receipt of Mr Eason’s reports and made further directions, without input of the other parties and simply relying on information from Mr Eason.
Subsequent steps in relation to the Family Court proceeding
[26] On 6 April 2022, Mr Eason filed an updating report as to his visit to the child that day. The report included comments made by the child to Mr Eason in response to Mr Eason’s explanation of the Family Court decision, Mr Eason stating “[the child] seemed, to some extent, relieved that this meant his father would not be under any further pressure”. Mr Eason suggested there might be some point in delaying the closure of his appointment.
[27] On 8 April 2022, Judge Shearer issued a Memorandum. He delayed the termination of Mr Eason’s appointment “notwithstanding that there were no ‘live’ proceedings” and requested a further report by mid-June.
[28]On 13 June 2022, Mr Eason filed a further updating report.
[29] On 15 July 2022, Judge Shearer issued a further Memorandum and requested a final report from Mr Eason within four weeks.
[30]Mr Eason filed a further updating report on 18 August 2022.
[31] On 22 August 2022 Judge Shearer issued a Memorandum terminating Mr Eason’s appointment and directing the court file be closed.
Considerations
ALength of delay
[32] Mr and Mrs Green’s delay was either four-and-a-half months (if measured from the final date for appeal of the Decision through to filing of the appeal papers) or five months (if measured through to the date of service of the appeal papers).
[33]Mr van Bohemen submits such delay was “not especially long”.
[34] I disagree, for the reasons identified by Mr Bryant on behalf of Mr Brown. This was a case of lengthy delay, all the more so when the courts are required under s 4(2)(a)(i) of the Act to take into account the principle that decisions affecting the child should be made and implemented within a timeframe appropriate to the child’s sense of time. The child was six years old at the time of the Decision and is now seven years old. As the Supreme Court identified in Almond v Read, the length of that delay means Mr and Mrs Green are seeking a greater indulgence from the court and must establish a stronger case for the extension to be granted.14
BReasons for delay
[35] This was not a case of an accidental slip in relation to the appeal period. Mr and Mrs Green made a conscious decision.
[36] In the brief affidavit provided (that of Mrs Green), the reasons for the delay are explained as follows:
(a)Mr and Mrs Green were “shocked at the [Decision] and, for a short period, stunned”; and
(b)they were “not sure what to do”.
[37] In her affidavit, Mrs Green then refers to the subsequent steps in the Family Court proceeding between April and August 2022 (above at [26]–[31]) during which
14 Almond v Read, above n 12, at [38](a).
Mr Eason filed his updating reports and Judge Shearer issued memoranda before finally terminating Mr Eason’s appointment.
[38] What Mrs Green did not include in her affidavit evidence were communications which took place from April 2022.
[39] On 6 April 2022, Mr Eason had copied to the other solicitors his updating report of that date (above at [26]). On 22 April 2022, Mr and Mrs Green’s (then) solicitor responded by email. She recorded:
Understandably, Mr and Mrs [Green] are devastated with the outcome of these proceedings which has been only furthered by receiving this report. Mr and Mrs [Green] do not intend to pursue matters further through the Family Court but have asked me to provide their email address so, should further correspondence be required, you may contact them directly as my instructions are now at an end.
[40] Mr Brown referred in his affidavit also to text exchanges with Mr and Mrs Green in April 2022 when he set up an arrangement for the child to visit Mr and Mrs Green at their home (on 15 May 2022). Mr Brown deposed that he has had no other communications from Mr and Mrs Green for contact with the child, other than messages sent on the child’s birthday.
[41] Mr Brown engaged in the 12 sessions of communication counselling arranged by the Family Court. It appears, however, from a report received from the counsellor that Mr and Mrs Green at some point gave the counsellor clearly to understand that they had “determined that they would take no further steps”.
[42] Mr van Bohemen submits the reason for Mr and Mrs Green’s delay in appealing was not a deliberate decision not to proceed followed by a change of mind but instead arose from “a misunderstanding [in] error as to the legal significance of the appeal timeframe, given the ongoing involvement by the Court with the Green’s application until August 2022”.
[43] I am unable to accept Mr van Bohemen’s characterisation of the reason for the delay. The two sets of communications from the Greens, directly or through their solicitor, indicated a decision not to proceed further. Their solicitor’s indication that
her instructions were “at an end” is inconsistent with any suggestion the Greens felt they were in some way keeping their appeal options open. Their apparent indication to the counsellor that “they would take no further steps” appears similarly clear.
[44] It seems implausible that their solicitor, an experienced family law practitioner, would not have discussed with Mr and Mrs Greens their appeal rights and the time limit involved. Her email as to her instructions being at an end was sent towards the end of the appeal period. Significantly, Mr and Mrs Greens have not deposed that they were not advised of the right to appeal and the timeframe for such appeal.
[45] I find as a matter of probability Mr and Mrs Greens were aware of their appeal rights but made a conscious decision (albeit borne out of great upset) to not pursue further proceedings.
[46] There is accordingly less justification for an extension than would have been the case had delay resulted from error or inadvertence.15
CThe conduct of the parties, particularly the applicants
[47] As both counsel recognised, this was not a case in which there had been a history of non-cooperation and/or delay by the applicants in the proceeding in the Family Court.
[48] Mr Bryant refers to findings made by the Judge in the Decision about the conduct of Mr and Mrs Green in relation to parenting matters. However, I do not view those aspects of conduct in this case as falling squarely within the bounds of this consideration. While the Judge commented on the way in which Mr and Mrs Green had gone about the proceedings (above at [15]), that comment, as I read the surrounding remarks, was focused on their approach to Mr Brown and their relationship with the child rather than their conduct in the proceedings themselves.
[49] There is, however, one aspect of Mr and Mrs Green’s conduct which I find relevant under this consideration. That relates to the clear need identified by
15 See Almond v Read, above n 12, at [38](b).
Judge Shearer for Mr and Mrs Green and Mr Brown to all engage in communication counselling sessions to assist in resetting their relationship — a direction clearly made for the purpose of enabling them to work together in the future in the best interests of the child. Mr and Mrs Green decision not to take advantage of those counselling sessions has an inevitable and major impact on the prospect that a substantive hearing or rehearing could lead to their being granted a parenting order in relation to a child they have not had direct contact with since May 2022. They have quite simply not undertaken the work that would be a necessary prerequisite to a different outcome than that contained in the Decision.
DPrejudice or hardship
[50] I will first consider prejudice or hardship to Mr Brown although the subject- matter of the Decision makes it more appropriate to place significantly greater weight on the interests of the child, which I will come to.
[51] Mr Brown asserts a prejudice through continued proceedings because, as a person requiring legal aid, through the continuation of any proceedings he will incur a greater debt to the Legal Services Agency. The exposure to continuing costs (whether initially self-funded or paid through legal aid) is common to all respondents and is not a prejudice on which I can place particular weight so far as it affects Mr Brown alone.
[52] For Mr Brown, however, Mr Bryant also places reliance on the impact of any ongoing litigation as it would relate to the child. It is clear from the Decision itself and the subsequent reports of Mr Eason that the litigation has impacted on the child. While a decision to reappoint lawyer for child for the purposes of any appeal has been deferred pending the outcome of this application, it is likely, having regard to the delay since the Decision was given (now over 14 months), there will be a further appointment and the possible need for further interviewing of the child. In addition to the impact of those matters upon the child many months after his last interactions with Mr Eason, there is also the indirect potential for the financial impact of the proceedings to affect the provision Mr Brown, as a solo father, can make for the child.
[53] Accordingly, in this case there is an identifiable prejudice which weighs against the granting of the application.
[54] If one focuses on the loss of the child’s relationship with Mr and Mrs Green, I must bear in mind the improbability of formal contact being restored between them in the near future, assuming Mr and Mrs Green were successful on an appeal following a grant of leave. Mr and Mrs Green have disengaged in relation to informal contact for over a year and have not engaged with the Court-referred counselling services. The Green, come 30 March 2024, will have their entitlement to apply under s 139A of the Act for leave to commence another proceeding. The time until then would provide opportunity for Mr and Mrs Green to take steps to establish the working relationship with Mr Brown that the Judge understandably considered was in the best interests of the child.
DSignificance of the issues raised, both to the parties and more generally
[55]There is no general or public significance in the proposed appeal.
[56] As Mr van Bohemen submits, the issues are of significance particularly to the child but also to the parties. That significance must be accorded some weight.
EMerits of the appeal
[57] Mr van Bohemen has not submitted that the proposed appeal would have strong prospects of success. Rather, he focused on the negative proposition that the appeal cannot be said to be “clearly hopeless”, that being the situation in which the Courts will most often have regard to the merits.
[58] In their proposed appeal grounds, above at [22(d)], Mr and Mrs Green placed weight on the earlier finding of Judge McMeeken that Mr and Mrs Green were the child’s “psychological grandparents”. For the reasons referred to at [19] above, the finding relied upon takes the prospects of an appeal succeeding no further. As I said, it was Judge Shearer’s responsibility to reach his decision on the full evidence he had read and heard. The Decision involved a careful consideration of the evidence and competing cases before coming to a clear decision as to what the welfare and best
interests of the child required. No analysis of the detail of the Decision has been presented to identify a flaw in the reasoning.
FThe interests of justice
[59] Against the background of these considerations, I then ask myself what the interests of justice require in this case. I find the interests of justice are clearly against the granting of leave to appeal. I particularly have regard to the interests of the child whose circumstances have been settled now for over a year. During that time, Mr and Mrs Green have not engaged in any of the communication counselling that a Family Court Judge found to be clearly called for in the child’s interests. The working relationship with Mr Brown that is so obviously required for those interests to be met has not been established.
Outcome
[60]I accordingly dismiss the application for leave to appeal.
Costs
[61]Costs should follow the event.
[62] I order the applicants to pay costs to the respondent on a 2B basis together with reasonable disbursements to be fixed by the Registrar.
Osborne J
Solicitors:
Joynt Andrews, Christchurch Cuningham Taylor, Christchurch
Copy to: S N van Bohemen, Barrister, Christchurch
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