K v K
[2016] NZHC 1
•8 January 2016
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 2015BETWEEN
K Appellant
AND
K Respondent
Hearing: 31 August 2015 Counsel:
Appellant in person
A R Shaw for RespondentJudgment:
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 K
did not meet that deadline either.
[7] On behalf of Ms K Mr Shaw then filed a memorandum seeking that the proceedings be struck out. On 8 July Collins J directed a telephone conference the purpose of which was to determine whether that should occur.
[8] On 13 July Mr K advised the Court that:
(a) he wished to attend the conference in person; (b) he wished an amicus to be appointed;
(c) he required further time to file his applications for leave due to a
“Traumatic Brain Injury”.
[9] The same day Mr Shaw filed a further memorandum reiterating his request that the (intended) appeals be struck out.
[10] On 14 July France J vacated the telephone conference and directed that there be a one hour hearing as soon as possible. He said that Ms K’s application to dismiss or strike out the proceedings and Mr K’s applications for a further extension of time and for the appointment of an amicus would be considered at the hearing.
[11] The hearing before me on 31 August took more than an hour. Mr K was self- represented although he assured me that he continues to be entitled to legal aid, a matter that would certainly be relevant to the amicus issue. But at this point I merely record that, as noted by Judge Ullrich, the attrition rate for legal aid lawyers appointed to assist Mr K in the past is high.
Approach
[12] The application to strike out and the application for an extension of time are effectively mirror images of each other. Self-evidently, the appointment of an amicus only becomes live if the former fails and the latter succeeds.
[13] Logically the application for an extension of time needs to be considered first. I consider the following matters to be relevant to the exercise of the Court’s discretion in the present case:
(a) the extent of the delay and any explanation for it;
(b) any prejudice to the other party arising from the grant of an extension; (c) the strength of the proposed appeals; and
(d) (critically) the best interests and welfare of S. [14] I consider these factors in turn.
The delay and its causes
[15] The starting point is that none of Mr K’s (intended) appeals were filed significantly out of time. But the difficulty is that since 8 May 2015 he has been aware that he nonetheless needed formally to apply for an extension. He has not done so and thus has compounded his initial, minor, delay with a more serious one. By the time of the hearing before me he had defaulted on two timetable directions made by this Court.
[16] In terms of the reasons for the delays and defaults I note that when extending the timetable ordered by Kós J on 8 May, France J relied principally on material filed by Mr K in support of his contention of a recent brain injury. His minute of 4 June records:
[Mr K] seemingly had concussion and suffered an injury to his hand that required surgery. He has been told that he cannot drive for a month.
[17] Subsequently Mr K filed an affidavit annexing a medical certificate from his GP dated 14 July 2015 which provided further verification of his injury. His doctor said:
[Mr K] has had 3 head injuries in the past 16 months which have resulted in a compounded significant brain injury manifest as confusion and disordered thought processes. His sanity is not affected and he is able to make informed and fully rational decisions but he is much more susceptible to stress and has trouble keeping track of events and demands in his life. His ability to function as a responsible parent is not however significantly impaired. On top of his existing diagnosis of Adult ADHD he thus has current health challenges. …
[18] While I accept the first, factual, sentence of this certificate (namely that Mr K has suffered a brain injury) I have reservations about certain of the opinions expressed in the remainder of it. In particular, the proposition that Mr K’s confusion and disordered thought processes do not affect his decision-making or parenting ability would need to be the subject of evidence from a qualified expert. In the absence of such evidence the opposite conclusion seems to me to be the more obvious one.
[19] Putting that point to one side for the moment, however, I do accept Mr K’s evidence that in early August 2015 he was also evicted from his Council flat. His eviction received some publicity at the time, due principally to the (undisputed) fact that Mr K has a significant hoarding problem that escalated to a point where he was unable to enter the flat by the front door and had, instead, to climb through a window. Mr K says that his hoarding is a consequence of his brain injury and that may well be so. Again, however, there is no expert evidence before me about that.
[20] As well as resulting in Mr K sleeping rough for a number of nights, he said his eviction has also made it more difficult to access certain material that he says is relevant to these proceedings.
[21] In any event, I am prepared to proceed on the basis that Mr K has, recently, faced a number of difficulties that have diminished his ability to comply with the timetables ordered by the Court. But it is important to view those difficulties in the context of the wider historical background which was traversed at length by
Judge Ullrich well prior to the May head injury or the August eviction. Her Honour noted (inter alia) that:4
[628] [Mr K] has a very strong and forceful personality and is very intent on meeting his own needs. He has difficulty regulating his emotions and acts impulsively. This means that those around him often need to respond to his actions rather than being able to pursue their own intended course of action.
[629] … he is very disorganised and has difficulty focusing and sustaining
a course of action.
[630] Some of these attributes may be attributable to his diagnosis of
ADHD.
…
[632] It is not possible to enter into an agreement with [Mr K] and be assured that he will maintain his side of the bargain. He will pursue his own ends regardless of the expectations of others.
[633] Human relationships rely for their success on turn taking and reciprocity. If a person is unwell [sic] or unable to take a turn or fails to perform his end of the bargain, it is not possible to have a working relationship with that person.
[634] [Mr K] behaves in that way. For example, he was not willing or able to take part in these proceedings in the same way as the other participants. He did not file his evidence on time. He came late to Court. He did not follow directions from the Court. He was not able to continue his relationship with three separate counsel.
[635] This pattern of behaviour creates chaos for those within his orbit. That is clear from the evidence about his trip to Switzerland in 2003; his trip to the United States in 2011; and his trip to Fiji in 2012; and his trip to Australia in February 2014. On each of those occasions his travel did not go ahead according to the original intention and other people were seriously inconvenienced.
[22] In other words, confusion and disorder are not new features of Mr K’s life. They quite clearly existed prior to the unfortunate events of 2015 and can only in small part be attributed to those events. Moreover, while it is impossible not to sympathise with his most recent afflictions, their existence and ongoing nature count as much against, as for, his present application. On the material before me I can have no real confidence that his circumstances, or his ability or willingness to meet court deadlines or to participate properly in its processes, will improve in the short to
medium term. While I acknowledge that there have been external factors
4 [K] v [K], above n 1.
contributing to Mr K’s non-compliance they do not ultimately weigh in his favour here.
Effect on third parties
[23] As far as the impact of granting an extension on third parties is concerned there is the effect of delay and the attendant uncertainty on both Ms K and S. There are particularly acute concerns in relation to S, in light of the COCA s 4(2)(a)(i) principle that decisions affecting the child should be made and implemented within a time frame that is appropriate to the child's sense of time. I have little or no confidence in Mr K’s ability to comply with further timetable directions if an extension is granted.
Merits of proposed appeals
[24] Nor do the merits of the intended appeals favour Mr K.
[25] In terms of the substantive (parenting order) decision it was clear that his principal concern remains as it was in the Family Court, namely S’s safety and what he maintains is Ms K’s serious problem with anger and violence. But the competing evidence about those things was set out in considerable detail by Judge Ullrich, who not only heard and saw the numerous witnesses but met with S. Mr K’s contention was ultimately rejected by the Judge, primarily because:
(a) his position was often contradictory (for example, he would express grave concerns about S’s safety with Ms K but would then say that he wished to leave S with her when it suited him);
(b)she considered that S’s account of the alleged incidents of violence involving Ms K was the result of “considerable psychological pressure exerted by Mr K for S to portray his mother as angry and
abusive, and himself as fearful of her”;5 and
5 At [638].
(c) the allegations of violence were belied by the fact that S himself wished to live at least part of the time with his mother and by the observations made of their relationship by the s 133 report writer.
[26] In my view the analysis in Judge Ullrich’s judgment is thorough and the conclusions she reaches are compelling. I consider there would be little, if any, chance of these factual conclusions being second-guessed on appeal.
[27] Also relevant to the merits of the proposed appeals are:
(a) the downturn in Mr K’s circumstances since the Family Court
judgment was issued; and
(b)the fact that the Family Court orders enable Mr K to continue to have significant contact with S.
[28] In my view both those matters also militate against the prospect of this Court placing S in Mr K’s day to day care, which is what he seeks. Accordingly I consider that the prospect of Mr K succeeding in his intended appeal against the parenting orders to be very low.
[29] Mr K did not really address me on the merits of the other two proposed appeals. But my own analysis suggests that they, too, do not favour granting an extension.
[30] As to the costs decision, it is fully and clearly reasoned. The Judge found that the actions of Mr K had needlessly increased the length and cost of the hearing, as they undoubtedly did. Importantly, however, and despite the strong urging of Ms K’s counsel, Judge Ullrich did not order increased or indemnity costs, but 2B costs of $44,562. The Judge also noted that Mr K was effectively insolvent and that trying to enforce the award against him would be an exercise in futility. For the same reason the Judge declined to make the orders ordinarily required by the COCA that Mr K was to contribute to the costs of counsel for the child and to the costs of
the s 133 report writer. Given my view on the merits of the proposed parenting order appeal there is no basis for concluding that the costs decision might be disturbed.
[31] Similarly, the decision making final the prohibition on removing S from New Zealand was entirely rational and squarely based on the evidence. I have quoted what Judge Ullrich said about Mr K’s previous overseas trips, which did not go well. The need for the order was demonstrable. It is not absolute. Either party can apply to the Family Court for approval of proposed travel.
The interests of the child
[32] As far as S’s welfare and best interests are concerned I have mentioned already the deleterious effect of permitting further protraction of this litigation and, for my part, regret that this decision has been delayed. And while s 5(a) of the COCA makes a child’s safety the paramount consideration I have already indicated my own view that Judge Ullrich’s rejection of Mr K’s allegations about Ms K seems unassailable.
[33] Conversely, it is also important in terms of S’s welfare to note that the Family Court judgment makes it clear that S was not thriving in Mr K’s care. Mr K’s own personal problems, his disorganisation and disregard for authority and rules meant that S often missed school and was falling behind. Possibly for similar reasons, Mr K was unable or unwilling to put boundaries around S’s behaviour. And I have already noted above what the Judge said about the undue psychological pressure he placed on S in an attempt to alienate him from his mother.
Conclusion
[34] Each of the factors I have discussed points against the grant of an extension of time to Mr K. Avenues remain for him in the Family Court if circumstances change in some material way. In the meantime he needs to take some time to focus on himself and to rebuild his life, while maintaining a loving and meaningful relationship with S within the parameters of the Court ordered contact.
[35] Mr K’s applications for extension of time are refused. The logical corollary is that the intended appeals should be struck out. The necessary applications for leave have not been, and now cannot be, filed.
[36] No issue as to the appointment of an amicus arises. For the avoidance of doubt, however, I would not have made such an order even if the appeals had been permitted to proceed. The central appeal was factual in nature and not of the kind in which the court might require assistance from independent counsel. Mr K advised that he had been granted legal aid. The difficulties he appears to have had in instructing counsel need to be viewed in light of the history; as previously noted the attrition rate amongst his lawyers has been tellingly high.
[37] If Ms K seeks costs a memorandum is to be filed by 5 pm on Friday
5 February. Mr K will then have until 5 pm on 19 February to file one in reply.
Solicitors: C & F Legal Limited, Nelson, for Respondent
Copy to: Appellant
Rebecca Ellis J
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