HBT v Manukau Court

[2023] NZHC 423

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. SEE:

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1149

[2023] NZHC 423

UNDER

the High Court Rules Act 2016,

Crimes Act 1961 and New Zealand Bill of Rights Act 1990

BETWEEN

HBT

Plaintiff

AND

MANUKAU COURT

First respondent

BM
Second respondent

CHIEF EXECUTIVE OFFICER FOR ORANGA TAMARIKI

Third respondent

FIONA COWAN

Fourth respondent

Hearing:

3 March 2023

Appearances:

Plaintiff in person

Appearance excused for the first respondent Second respondent in person

A Hill for third respondent
P Moodley for fourth respondent

Date of judgment:

8 March 2023

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 8 March 2023 at 11.00am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

HBT v MANUKAU COURT [2023] NZHC 423 [8 March 2023]

[1]                  The mother, HBT, seeks leave to appeal my 16 November 2022 minute’s stay of her application for judicial review of Judge Mahon’s 11 January 2017 interim parenting decision in the Family Court. The stay is pending that Court’s final determination of the Care of Children Act 2004 proceeding before it (presently scheduled for a five-day hearing commencing 13 March 2023, although the mother has sought its vacation).

Approach to applications for leave to appeal

[2]                  Section 56(3) of the Senior Courts Act 2016 prohibits appeals of orders or decisions on interlocutory applications in civil proceedings without this Court’s leave. The object of requiring such leave is:1

… to limit the cases which may go on appeal in the interests of finality of litigation and the workload of the [appellate] Court, while preserving the integrity of the law and the interests of justice.

[3]                  It is “well settled” the approach to leave is as a “filtering mechanism” for which “[t]he threshold is high”:2

… leave to appeal should only be granted where the significance or implications of an arguable error of fact or law, either for the particular case or for the applicant or as a matter of precedent, warrants the further delay which the appeal process would involve.

The question is if there is something justifying intermediate appeal.

Discussion

[4]                  The mother would contend on appeal my decision is “fundamentally flawed” because I misapprehended her application as interlocutory. She says I therefore have obstructed natural justice, and it is “unreasonable” of me to delay her contest of the Family Court’s 2017 decision. She would argue I disregarded the “mandatory considerations” of ss 4 and 5 of the Care of Children Act. And she emphasises the Family Court cannot ‘review’ its own decision, meaning its prospective final determination should be irrelevant to her application for judicial review.

1      Sandle v Stewart [1982] 1 NZLR 708 (CA) at 715.

2      Stockman v Health and Disability Commissioner [2022] NZCA 511 at [13], citing Greendrake v District Court of New Zealand [2020] NZCA 122 at [6] (citing Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13]).

[5]                  None of that — even if arguable errors — has significance or implications for the case, the mother or precedentially. Her reliance on caselaw is misplaced:3 that judgment is in determination of an appeal against the Family Court’s final determination of parenting orders. My 16 November 2022 minute’s reference at [6] to “interlocutory order” is not in reference to the nature of her application, but to my order for its stay pending such final determination. The third respondent obtained the proceeding’s stay initially pending the Family Court’s determination of the mother’s application for transfer to this Court. I continued that stay after the Family Court dismissed the application and set the proceeding down for its present fixture. As my 24 August 2022 minute emphasised at [5], applications for review are as susceptible to interlocutory orders as any other proceeding.4

[6]                  Notably, on  review,  the  mother  would  seek  to  overturn  Judge  Mahon’s 11 January 2017 interim parenting order, reinstate Judge Ellis’ 26 October 2016 protection order, obtain the child’s interim placement “in a neutral carer[’]s custody, ideally mine” and orders for costs and discipline. With the possible exception of the last orders sought, those other issues of contest to and mandatory considerations on determination of parenting orders are open to argument in the Family Court’s forthcoming hearing. That is why, as my 16 November 2022 minute’s [4]–[5] explained, judicial review of interlocutory and interim orders in the Family Court is exceptional.5 Nothing in the mother’s proceeding approaches that threshold.

[7]No intermediate appeal is justified.

[8]                  The mother also refers me to the Family Court’s 24 February 2023 pre-hearing conference minute, contended to “[demonstrate] a restricted hearing”, further “to substantiate why a Judicial Review should proceed”. The minute refers to arrangements for the 13 March 2023 hearing. By ‘restricted hearing’, I apprehend she refers to Judge Ginnen’s exclusion of particular evidence relating to questions if the

3      Hopkins v Jackson [2022] NZHC 2649.

4      Citing New Zealand Maori Council v Attorney-General [1996] 3 NZLR 140 (CA) at 167; Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53 (CA) at 63.

5      Citing Newton v Family Court at Auckland [2022] NZCA 207.

child is safe in the father’s care. Self-evidently, coming well after my decision, it does not illustrate any arguable error on my part as may justify intermediate appeal.

[9]I will not grant the mother leave to appeal my 16 November 2022 decision.

Result

[10]              The mother’s 5 December 2022 application is dismissed. If she chooses to pursue it, she has 20 working days after the date of this judgment to apply to the Court of Appeal for leave to appeal.6

—Jagose J

Solicitors:

Crown Law, Wellington Brookfields, Auckland

Copy to:

Plaintiff

Second respondent

6      Senior Courts Act, s 56(5).