Public Trust v LBB
[2013] NZHC 2375
•12 September 2013
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 AUCKLAND REGISTRY
CIV 2013-404-001804
[2013] NZHC 2375
IN THE MATTER of the Family Protection Act 1955 and the Care of Children Act 2004 BETWEEN
PUBLIC TRUST
PlaintiffAND
LBB
Defendant
| Hearing: | 22 August 2013 Further memorandum received 5 September 2013 |
Appearances: | K G Davenport QC and J W Wall for the Plaintiff No Appearance by or on behalf of the Defendant |
Judgment: | 12 September 2013 |
Reasons: | 18 September 2013 |
REASONS JUDGMENT OF BROWN J
This judgment was delivered by me on 18 September 2013 At 2.30 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: Public Trust, Auckland Counsel: K Davenport QC, Auckland
PUBLIC TRUST v LBB [2013] NZHC 2375 [12 September 2013]
[1] On 12 September 2013 I released a results judgment in which I held that the High Court does not have jurisdiction to make an order appointing a person the guardian of a child under s 27(1) of the Care of Children Act 2004. In this judgment I now record my reasons for that decision.
[2] Part 2 of the Care of Children Act 2004 provides for various modes of guardianship: guardianship based on parental status; the appointment of an eligible spouse or partner of a parent as additional guardian; testamentary guardians and court-appointed guardians; and guardianship of the Court.
[3] Section 27 provides for Court-appointed guardians:
27 Court-appointed guardians
(1)The Court may appoint a person as a guardian of a child, either in addition to any other guardian or as sole guardian, either—
(a)on an application for the purpose by any person; or
(b)on its own initiative, on making an order removing a guardian under section 29.
(2)The Court may appoint the person as a guardian of the child—
(a)either for a specific purpose or generally; and
(b)either for a specified period or not.
(3)However, only the High Court may appoint or remove a litigation guardian for proceedings before the High Court or a court higher than that Court, but the High Court may also appoint or remove a litigation guardian for proceedings that are not before the High Court or a court higher than that Court.
[4] The word “court” is defined in s 8 to mean a court having jurisdiction in the proceedings under s 125. Section 125 provides (in material part):
125 Jurisdiction of Courts
(1)Proceedings under this Act must be heard and determined in a Family Court unless—
(a)the proceedings are criminal proceedings, in which case no Family Court has jurisdiction in respect of them; or
(b)under any of the following provisions, the proceedings may or must be heard and determined in a court other than a Family Court:
(i)subsection (2) or subsection (4):
(ii) sections 27, 30, 35, 72, 73, 76, and 77:
(iii) subpart 4 of Part 2.
(2)A Family Court must not entertain an application in respect of a child (except an application specified in subsection (3))—
(a)if an order of the High Court about the guardianship of, or about the role of providing day-to-day care for, or about contact with, the child (other than an order under section 44) is in force, and has not been removed into a Family Court under section 127; or
(b)if the child is under the guardianship of the High Court.
(3)Despite subsection (2), a Family Court may entertain—
(a)an application for an interim order about the role of providing day-to-day care for, or about contact with, the child; or
(b)an application under section 72 or section 73 or section 105
(4)If a Family Court Judge (or, in proceedings under subpart 4 of Part 2 before a District court, a District Court Judge) is of the opinion that proceedings under this Act, or a question in proceedings under this Act, would be more appropriately or speedily dealt with in the High Court, the Family Court Judge (or District Court Judge) may, on an application by a party to the proceedings or without any application of that kind, in the prescribed manner refer the proceedings or the question to the High Court.
[5] The policy reflected in s 125(1) is that the Family Court has exclusive jurisdiction in relation to guardianship proceedings except in respect of the categories of exceptions comprising criminal proceedings (s 125(1)(a)) and the collection of provisions specified in s 125(1)(b). Of the three categories in (b) the first relates to subsections (2) and (4) of s 125 itself. The third category concerns the subpart which addresses international child abduction.
[6] There remains a second category which comprises seven sections. Save for s 27, the other six sections referred to in s 125(1)(b)(ii) are explicit in their recognition of the concurrent jurisdiction of the courts there referred to: for example
s 31 refers to the High Court and a Family Court and s 72 refers to a Family Court and a District Court.
[7] In the case of s 27, while s 27(3) addresses the jurisdiction of the High Court with reference to litigation guardians, s 27(1) and (2) are not explicit on the issue of exclusivity or concurrency of jurisdiction. However in order to qualify as an exception to the otherwise exclusive jurisdiction of the Family Court, it is necessary that:
under [s 27] the proceedings may or must be heard and determined in a court other than a Family Court.
[8] In my view what those words require is that the specific section, in this instance s 27, should state that the proceedings either may or must be determined in a court other than a Family Court and should then also identify that other court. While s 27(3) does that with reference to the High Court’s jurisdiction in relation to litigation guardians, I do not read ss 27(1) and (2) as making provision for another identified court (on either a “may” or a “must” basis) to hear and determine applications for the appointment of a court-appointed guardian.
[9] The plaintiff contends for a different interpretation of s 125. I set out the relevant paragraphs of its argument verbatim:
3.7Section 125 creates three classes of proceedings. The first class relates to proceedings which must be heard in a court other than the Family Court: e.g. criminal proceedings (s125(1)(a)), or proceedings in which a child has been placed under the guardianship of the High Court (s 125(2)(b)).
3.8The second class of proceedings are those specified in subsection 1(a)(i)-(iii), which may or must be heard by a court other than the Family Court. The specified sections represent proceedings for which the Family Court and High Court enjoy concurrent jurisdiction under the COCA.
3.9The final class of proceedings comprise the default: all other proceedings under the COCA must be heard in the Family Court. This provision reflects the general jurisdiction provided for by s 11 of the Family Courts Act 1980.
3.10The current application has been made under s 27(1) of the COCA, is a proceeding which falls in the second class explained above.
Accordingly, the application is part of proceedings which may be heard in this Court.
3.11Section 125 conveys jurisdiction to the High Court to hear any application under s 27. Thus, this Court enjoys the authority to determine the existing application made under s 27(1). The section appears to make a distinction between “the court” (as is used in subsections (1) and (2)); and “the High Court” (as is used in subsection (3)). However, s 125(1)(a)(ii), which governs the jurisdiction of the courts, is worded generally and must relate to both the Family Court and High Court.
The references in paragraph 3.8 to “subsection (1)(a)(i)-(iii)” and in paragraph 3.11 to s 125(1)(a)(ii) are of course intended to be references to s 125(1)(b).
[10] I have two difficulties with the reasoning in paragraphs 3.8 and 3.10. Firstly, they involve s 125(1)(b) being read as if it referred simply to the specified sections. The interpretation advanced in those paragraphs does not give a role to the words “the proceedings may or must be heard and determined in a court other than a Family Court”.
[11] Secondly, and reflecting my view that the submission fails to engage with the further requirement of the identification of the alternative court, paragraph 3.8 states that the specified sections represent proceedings in respect of which the Family Court and the High Court enjoy concurrent jurisdiction under the Act. However in the list of sections referred to in s 125(1)(b)(ii) it is not in every instance that it is the High Court which has the concurrent jurisdiction: see ss 72-73 where the court with concurrent jurisdiction is a District Court. Indeed s 77 refers to judges of the High Court, District Court or Family Court.
[12] I consider that my interpretation of s 125 is to be preferred and is more consistent with the content of the sections which are referred to in s 125(1)(b)(ii). I suggest that support for my interpretation is to be found in two other sources: first, its consistency with other provisions in the Care of Children Act 2004; secondly, by reference to the prior legislative history.
Consistency with other provisions
[13] Whereas s 27(3) addresses both the High Court’s power to appoint and remove litigation guardians, the power in ss 27(1) and (2) relates only to the appointment of a guardian. The power to make an order removing a guardian is located separately in s 29 as s 27(1)(b) itself reflects. Section 29(1) provides:
29 Court may remove guardians
(1)On an application for the purpose by an eligible person, the Court may make—
(a)an order depriving a parent of the guardianship of his or her child; or
(b)an order removing from office a testamentary guardian or court-appointed guardian; or
(c)an order revoking an appointment of an additional guardian made under section 23.
[14] Section 29 is not listed in s 125(1)(b)(ii). Consequently only a Family Court has the power to make an order removing a court-appointed guardian from office. Of course that would present no difficulty where the order appointing the guardian had been made by a Family Court. However it would create an unsatisfactory asymmetry if it were to be accepted that the High Court could appoint a person as the guardian of a child under s 27(1) but could not make an order removing a court- appointed guardian from office, that being the exclusive jurisdiction of a Family Court under s 29.
[15] Similarly it would seem to follow that the High Court could only ever exercise the s 27(1)(a) power but not the s 27(1)(b) power. For if only a Family Court can exercise the power to remove a court-appointed guardian, then logically only a Family Court could exercise the s 27(1)(b) power.
[16] Assuming for the purposes of analysis the jurisdiction of the High Court to make an order under s 27(1) appointing a guardian, if an order for appointment of a guardian was made by the High Court and subsequently an application was made to the Family Court for removal of that court-appointed guardian, the prohibition in s 125(2) would be encountered, namely that the Family Court must not entertain an
application in respect of a child if an order of the High Court about guardianship is in force. It appears that it would be necessary first for a party to apply to the Registrar of the High Court under s 127 to have a copy of the High Court’s order filed in a Family Court. Only then would it be competent for a Family Court to entertain the application for removal under s 29.
[17] The absence from s 125 of a reference to s 29 and the convoluted procedure which would need to be followed in order for a Family Court to exercise its exclusive jurisdiction to entertain a removal application in circumstances where the original appointment under s 27(1) had been made by the High Court are significant factors which I consider point to ss 27(1) and (2) being construed as exclusively a Family Court jurisdiction.
The legislative history
[18] As originally enacted the Guardianship Act 1968 provided in s 4 that the Supreme Court and a Magistrate’s Court should each have jurisdiction in respect of proceedings under the Act subject to certain specified exceptions. Consequently both the Supreme Court and a Magistrate’s Court had jurisdiction to appoint a guardian of a child under s 8 which read:
8 Court-appointed guardians
(1)Subject to the provisions of this section, the Court may at any time, on application made for the purpose or on the making of an order under section 10 of this Act, appoint a guardian of a child either as sole guardian or in addition to any other guardian, and either generally or for any particular purpose, and either until the child attains the age of 20 years or sooner marries, or for any shorter period.
(2)The High Court shall have exclusive jurisdiction to appoint and remove a guardian ad litem in respect of any proceedings before that or any higher Court, and may appoint or remove a guardian ad litem in respect of any proceedings before any other Court.
[19] It will be observed that s 8(2) is the antecedent to the current s 27(3).
[20] However at approximately the same time as the Family Proceedings Act 1980 came into force the Guardianship Act 1968 was amended whereby s 4 was repealed and substituted with a new s 4 which provided in material part:
4 Jurisdiction of Courts
(1)Subject to subsections (2) to (4) of this section and to sections 9, 12, 19, and 20 of this Act, proceedings under this Act shall be heard and determined in a Family Court.
(2)A Family Court shall not have jurisdiction in respect of criminal proceedings under this Act.
[21] One effect of that amendment was that the High Court no longer had jurisdiction under s 8(1) in relation to the appointment of guardians.
[22] The Guardianship Act 1968 was repealed by the Care of Children Act 2004. At the date of the repeal s 4 of the Guardianship Act 1968 (which is the antecedent to s 125) stated in material part:
4 Jurisdiction of Courts
(1)Subject to subsections (2) to (4) of this section, to sections 10A, 12, 19, 19C, and 20 of this Act, and to Part 1 of the Guardianship Amendment Act 1991, proceedings under this Act shall be heard and determined in a Family Court.
(2)A Family Court shall not have jurisdiction in respect of criminal proceedings under this Act.
[23] I do not consider that there is anything in the Care of Children Act 2004 to suggest that, by including in s 125(1)(b)(ii) the reference to s 27, Parliament was intending to confer again on the High Court the power to appoint guardians which had been removed in 1981.
[24] Why then is there a reference to s 27 in s 125(1)(b)(ii)? In my view the reason for the reference to s 27 is because of the fact that s 27(3) refers to the power of the High Court to appoint and remove litigation guardians. Of course it may be that it was unnecessary to do so: in that regard I draw attention to the fact that s 8(2) of the Guardianship Act 1968 continued to refer to the power to appoint and remove a guardian ad litem subsequent to the 1981 amendment.
[25] However in the course of drafting a new piece of legislation such as the Care of Children Act 2004 it is perhaps understandable that the draftsman would chose to include cross-references to all provisions which recognise the jurisdiction of courts other than that court which, as a general rule, has exclusive jurisdiction under the Act, namely the Family Court.
Conclusion
[26] I have not been able to locate any authority that addresses the question directly. I do however note a comment by Mallon J in Hutt District Health Board v B1 at footnote 37 that it was unclear whether under s 125(1) the High Court had jurisdiction at first instance to appoint a mother as the sole guardian of a child for the purposes of medical treatment under s 27.
[27] I also note that there is no suggestion in leading family law text books2 that the High Court has concurrent jurisdiction under s 27(1) and (2). Furthermore the commentary in Brookers Family Law3 assumes that it is only the Family Court that has jurisdiction to appoint guardians under s 27(1).
[28] For these reasons I conclude that the High Court does not have jurisdiction to make an order appointing a person the guardian of a child under ss 27(1) and (2) of the Care of Children Act 2004.
Brown J
1 Hutt District Health Board v B [2011] NZFLR 873 (HC) at [25].
2 B D Inglis New Zealand Family Law in the 21st Century (Brookers, Wellington, 2007); Mark Henaghan Care of Children (LexisNexis, Wellington, 2005).
3 Patrick Mahony (ed) Brookers Family Law-Child Law (looseleaf ed, Brookers) at [CC27.01].
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