JB v JB HC Gisborne CIV 2009-016-445 - [2010] NZHC 2314

NOTE: 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 align="center">LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CIV 2009-016-445

BETWEEN JB Appellant

ANDJB Respondent

Hearing: 20 December 2010 (by telephone) Counsel: K L Goldsbury, Lawyer for the Child
P Dreiffus for JB (Father) J Allen for JB (Mother)

Judgment: 20 December 2010

(ORAL) JUDGMENT OF HEATH J

Solicitors:
Bernard Bull & Co, PO Box 946, Gisborne

JB V JB HC GIS CIV 2009-016-445 20 December 2010

Rishworth Wall & Mathison, PO Box 55, Gisborne
Woodward Chrisp, PO Box 347, Gisborne

to extend the time for K, the child subject to Family Court orders, to appeal against a decision of the Family Court given at Gisborne, on 19 November 2010. Her concern was that the time for appeal might expire before K had an opportunity to engage a solicitor as a litigation guardian to bring an appeal.

[2] Ms Goldsbury has advised me that the proposed grounds of appeal are that the Judge erred in requiring contact between K and his father to occur on specified days with no provision in the order for any flexibility.

[3] I made an interim order on 16 December 2010, on the basis that counsel for the mother and the father would be served and have an opportunity to be heard on the issue this morning.

[4] At a hearing conducted by telephone today Mr Dreiffus, for the father, and Mr Allen, for the mother appeared. Mr Dreiffus indicated that the father opposed an extension of time but that, if granted, he proposed to take no part in an appeal; leaving the issue for the Court to determine. Mr Allen indicated that the mother was likely to file an appearance reserving rights if the appeal were pursued but that she abided the decision of the Court on the present application.

[5] Ms Goldsbury indicated that she did not propose to bring an appeal in her capacity as Lawyer for the Child.

[6] Although some of the orders made by Judge de Jong on 19 November 2010 were made under s 44 of the Care of Children Act 2004 (in respect of which an appeal only lies with leave), counsel informed me that the orders that K wishes to challenge were made on a parenting application; meaning that rights of appeal exist
both in respect of the parties and the child to whom the proceeding relates.[1]

[1] Care of Children Act 2004, s 143(2).

[7]      I do not consider that there is jurisdiction, at this stage, to grant an extension of time to appeal. There is nothing before the Court by way of appeal from K, albeit for understandable reasons.
[8]      Nevertheless, r 20.4(3) of the High Court Rules indicates that this Court may give special leave to extend the time prescribed for appeal in a case where the enactment conferring the right of the appeal does not limit the time prescribed to bring it. That is the case in relation to an appeal brought under s 143 of the Care of Children Act.
[9]      It is also clear that any application for extension may be brought before or after expiry of the time for appeal, on an interlocutory application made on notice to every other party affected by the appeal.[2]
[2] High Court Rules, r 20.4(4).
[10]    In my view, that is the most appropriate way to proceed. That will protect K’s rights in relation to any appeal he wishes to bring. If an application of that type were filed in the New Year, the Registrar shall refer it to me for directions and an appeals management conference.
[11]     The interim order I made on 16 December 2010, now lapses. The orders made by Judge de Jong will continue in force, at least until such time as any application for stay might be made and determined, consequent upon an appeal being filed and an extension of time sought.
[12]     On 16 December, I appointed Ms Goldsbury as Lawyer for the Child for the purposes of the present application. While that appointment will now terminate, I direct that the costs she incurs in relation to reporting to K on the outcome of this hearing and in discussing any matters with him over the next few days should be treated as part of the costs appropriately incurred by her under that appointment.
No order as to costs.
P R Heath J