K v K - [2016] NZHC 1

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 COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-000064
CIV-2015-485-000101

CIV-2015-485-000291 [2016] NZHC 1

UNDER
Section 143 of the Care of Children Act

2004

IN THE MATTER OF

Intended appeals of decisions of
Judge V H Ullrich QC dated 9 December
2014, 13 January 2015 and 2 March 2015

BETWEEN

K Appellant

AND

K Respondent

Hearing: 31 August 2015

Counsel:

Appellant in person
A R Shaw for Respondent

Judgment:

8 January 2016

RESERVED JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is
3 pm on the 8th day of January 2016

K v K [2016] NZHC 1 [8 January 2016]

[1] Mr K and Ms K have been engaged in Family Court litigation over the parenting and day to day care of their son, S. On 9 December 2014
Judge Ullrich QC issued a 657 paragraph judgment in which she ordered that S was to be in the day to day care of his mother but granting Mr K contact for three days every second week and half of the school holidays.1

[2] Mr K filed an appeal against that decision. The appeal was filed six days out of time, rendering an application for leave necessary. He did not file such an application.

[3] Mr K has filed further appeals against:

(a) Judge Ullrich’s decision dated 13 January 2015 in which she made final an earlier interim order preventing the removal of S from New Zealand;2 and

(b) her Honour’s costs decision dated 2 March 2015 in relation to the

parenting order matter.3

[4] These appeals were also brought out of time. The first was filed about two months late. Leave to file it was, in any event, required by virtue of s 143(2) of the Care of Children Act 2004 (the COCA). The second was filed in time but Mr K failed to serve Ms K timeously. Again, no applications for an extension (or for leave under s 143(2)) were filed.

[5] A telephone conference was scheduled for 8 May 2015. But Mr K could not be contacted and it did not proceed. Instead, Kós J made directions for the filing of the requisite applications for leave and notices of opposition. He also directed that Mr K file amended notices of appeal that complied with the High Court Rules,
noting that the documents filed by him thus far were “incoherent”.

1      [K] v [K] [2014] NZFC 9380.
2    [K] v [K] [2015] NZFC 137.
3      [K] v [K] [2015] NZFC 1641.

[6] Mr K did not comply with these directions. He later sought an extension of two months on medical grounds arising out of an accident he had suffered on
10 May 2015. Simon France J granted him an extension of time until 3 July. Mr…

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 K v K

Details

AGLC: K v K [2016] NZHC 1
Case: [2016] NZHC 1
Decision Date: 8 January 2016

CaseChat Overview and Summary

In this case, Mr K appealed various Family Court decisions relating to the care and parenting of his son, S, to the High Court of New Zealand. Ms K, the son's mother, opposed the appeals and sought their dismissal. The court had to determine whether to grant an extension of time for Mr K to file his applications for leave to appeal and whether to strike out the intended appeals due to the delays in filing them. The court considered the extent of the delay and any explanation for it, any prejudice to the other party arising from the grant of an extension, the strength of the proposed appeals, and the best interests and welfare of S. The court found that none of the intended appeals were filed significantly out of time, but Mr K had been aware that he needed to formally apply for an extension since May 2015 and had not done so. The court also found that Mr K's circumstances and ability or willingness to meet court deadlines or participate properly in its processes would not improve in the short to medium term. The merits of the intended appeals did not favour Mr K either. The court concluded that each of the factors pointed against the grant of an extension of time to Mr K. Therefore, Mr K's applications for extension of time were refused, and the logical corollary was that the intended appeals should be struck out. The necessary applications for leave have not been, and now cannot be, filed. No issue as to the appointment of an amicus arose, and the court would not have made such an order even if the appeals had been permitted to proceed. The court refused the applications for extension of time and struck out the intended appeals. Ms K was entitled to seek costs, and Mr K would have until February 19 to file a memorandum in reply.

Orders