Roberts v Carroll

[2023] NZHC 1121

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

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2022-454-92

[2023] NZHC 1121

IN THE MATTER

of the Family Violence Act 2018 and the Property (Relationships) Act 1976

UNDER

Part 20 of the High Court Rules 2016

BETWEEN

ROBERTS

Appellant

AND

CARROLL

Respondent

Hearing:	8 May 2023
Appearances:	Mr Roberts self-represented Appellant T G A Manktelow for the Respondent
Judgment:	11 May 2023

JUDGMENT OF COOKE J

(Interlocutory matters)

[1]        This judgment deals with four interlocutory matters arising in relation to these appeals, or proposed appeals.1 In particular:

(a)The appellant seeks leave to appeal out of time a decision of the Family Court dated 14 October 2020 declining his application for a temporary protection order under the Family Violence Act 2018. This is opposed by the respondent.

1      This judgment is released with substituted names for the parties given ss 11B to 11D of the Family Court Act 1980.

ROBERTS v CARROLL [2023] NZHC 1121 [11 May 2023]

(b)The appellant also applies for leave to appeal out of time the decision of the Family Court making a final protection order against him on   15 November 2022. This is also opposed.

(c)The appellant also applies for a stay of the judgment of the Family Court dated 30 September 2022 making orders under the Property (Relationships) Act 1976 pending the hearing of his appeal against that decision. The respondent opposes.

(d)The question of security for costs of the appeal(s) needs to be determined.

[2]        I note that the procedural complexity of these applications was addressed by Thomas J in her minute of 21 February 2023 and that this hearing was directed as a consequence. Written submissions were filed in advance. Against that background I will deal with the four matters in turn.

Appellant’s unsuccessful application for protection orders

[3]        The appellant seeks leave to appeal out of time the decision of Judge Mahon dated 14 October 2020 declining his application for a temporary protection order, and an occupation order. Judge Mahon said (emphasis in original):

The application does not raise grounds for an order to be made against the respondent under the Family Violence Act and so it is not necessary to serve the application [on] the respondent because there is no jurisdiction for either applications to proceed and the without notice applications and underlying substantive applications are dismissed for want of jurisdiction.

[4]        Under s 177 of the Family Violence Act the appellant has the right to appeal to the High Court from a decision of the Family Court to refuse or make an order. The High Court Rules 2016 and ss 126–130 of the District Court Act 2016 apply. Rule

20.4 of the High Court Rules provides that the appeal must be brought within 20 working days of the decision appealed from, but allows the Court to give special leave to appeal out of time.

[5]        The approach to the grant of special leave to appeal was addressed by the Supreme Court in Almond v Read by reference to the equivalent provision regulating appeals to the Court of Appeal.2 Amongst the relevant considerations are the length of the delay, the reasons for the delay, the conduct of the parties particularly of the appellant, any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome, and the significance of the issues raised by the proposed appeal.

[6]        In opposing the application Mr Manktelow referred me to C v H where Nation J concluded that, properly interpreted, there was no right of appeal against decisions of the Family Court on without notice applications for temporary protection orders under s 177 of the Family Violence Act. His view was that the appropriate remedy in cases where such orders were not made when they should have been, was by way of judicial review.3 I respectfully disagree with these views. In particular:

(a)The legislation appears clear on its face. The appeal right in s 177(1) and (3) apply to a “… decision of a court, in proceedings under this Act to … make or refuse to make an order …”. There can be little doubt that a temporary protection order is an order under the Act, or that a decision not to make such an order is a decision to refuse to make such an order. The position can be contrasted with other appeal rights concerning decisions of the Family Court, such as those under the similarly worded, but different provisions in the Care of Children Act 2004.4 If there had been a legislative intent to exclude particular types of orders from the right of appeal when the legislation was passed in 2018 that can be expected to have been identified in a similar way. Section 177 sets out a reasonably detailed regime for such appeals.

(b)In the vast majority of such cases any appeal in relation to temporary orders by a dissatisfied respondent will be superseded by the subsequent decisions of the Family Court, including in relation to any subsequent applications on notice. In such cases the High Court can

2      Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.

3      C v H [2022] NZHC 3145, including at [17], [24], [26] and [29].

4      Care of Children Act 2004, s 143.

decline to set down the hearing of the appeal pending completion of further proceedings in the Family Court, and also direct the parties to lodge any appeals concerning the subsequent decisions of the Family Court.5 Indeed that is what Thomas J did in the present case in relation to Mr Roberts appeal from the decision granting a temporary protection order against him, as I explain in paragraphs [11]–[16] below. The parties can expect the Court to take such case management steps with respect to appeals against decisions granting temporary orders without notice.

(c)As Clifford J said in B v Family Court at Masterton there will nevertheless be cases where an unsuccessful applicant can demonstrate that the circumstances are such where a without notice protection order should have been made by the Family Court.6 The suggestion that such challenges should be made by way of judicial review is not satisfactory in my view. Moreover such review proceedings face the same practical considerations as arise with respect to the right of appeal.

(d)The Court has a power under r 20.7 to dispense with service of an appeal on any other party on any terms it considers just. So in the rare cases where an appeal against a temporary protection order decision is warranted the High Court can approach the appeal without requiring the respondent to be served.

(e)The suggestion that such challenges should proceed by way of judicial review would mean that the machinery regulating such appeals would be avoided — such as the time limit for bringing appeals under r 20.4, the requirement to provide security under r 20.13, and the automatic dismissal of appeals when security is not provided under s 177(4) of the Family Violence Act and s 126 of the District Court Act 2016.

5      There is no need for the appeal to be formally stayed. The Court’s stay powers under r 20.10 are directed to the underlying proceedings. The Court can simply engage in sensible case management.

6      B v Family Court at Masterton [2014] NZHC 3057, [2015] NZFLR 307.

[7]        My disagreement with Nation J’s view should not be taken to amount to any encouragement of appeals against decisions made on applications for temporary orders made on a without notice basis. There will likely be very few cases where the High Court would wish to substantively address such challenges on appeal, particularly before final orders are made. But I do not see that one can get around the plain terms of the Family Violence Act. There will be rare cases where such appeals may be appropriate, and the High Court can effectively case manage any unnecessary appeals against temporary protection order decisions.

[8]        In the present case the difficulty with the suggestion that there is no right of appeal is demonstrated by the fact that, when dismissing the without notice application in the present case, the Family Court has concluded there is no basis to make a protection order at all. A disappointed applicant would plainly appear to have a right of appeal in those circumstances.

[9]        But that right of appeal needs to be exercised within 20 working days. The Court’s decision here was on 14 October 2020. Mr Roberts’ application is made more than two years later. Having heard the arguments of Mr Roberts and the respondent, and applied the approach set out in Almond v Read, I conclude that there is no basis upon which leave to appeal out of time could now be granted.7 That is because of three key considerations:

(a)Any basis to make such an order no longer exist even if Mr Roberts could prove there were grounds for such an order at the time. The parties have separated. The matrimonial property has been divided. The circumstances have changed in a substantial way since 2020. I pressed Mr Roberts on what the present basis for a protection order could be. He effectively said that it was the respondent’s behaviour in connection with the conduct of the continuing proceedings. He made reference to a trespass notice that had been served on him. But this was in 2020, and access to the property has now been made subject to the orders of the Family Court dividing the matrimonial property. This included an ability for Mr Roberts to go to the property to get his

7      Almond v Read, above n 2.

chattels. I do not accept his argument there remains any arguable basis for a protection order in his favour.

(b)Secondly, I do not accept Mr Roberts’ explanation for the delay. He emphasised that he is a litigant in person and did not know why the Family Court Judge was in error in 2020. I accept that there must be some latitude given to litigants in person in those sorts of circumstances. But that cannot explain a delay of more than two years.

(c)In any event I am concerned that any arguments about protection orders now have the capacity to operate oppressively, or to unnecessarily extend arguments concerning a relationship that is now well and truly over.

[10]For these reasons the application for leave to appeal is declined.

Protection orders in favour of Ms Carroll

[11]      Mr Roberts seeks leave to appeal, out of time, the decision of the Family Court granting Ms Carroll protection orders. This is opposed by Ms Carroll.

[12]      There is some procedural complexity. Ms Carroll was granted a temporary protection order on 12 August 2022. On 9 October 2022 Mr Roberts applied to this Court for an extension of time to appeal against this decision. In the meantime the protection order proceedings continued in the Family Court and a final protection order was then made on 15 November 2022.

[13]When these matters came before Thomas J on 21 February 2023 she said:8

The applicant would be well advised to review his applications for leave relating to the protection orders. If, as appears to be the case, one relates to the interim protection order, this has not been superseded by the final protection order. If the applicant intended his appeal to be in relation to the final order, he will need to withdraw the existing application and file a new application.

8      Roberts v Carroll HC Wellington CIV-2022-454-92, 21 February 2023 (Minute) at [9].

[14]      Thomas J then directed that any new or amended application(s) and supporting affidavits be filed and served within 10 working days. Mr Manktelow advised that he also granted Mr Roberts an extension of time to comply with those directions. In any event Mr Roberts filed a further notice of appeal against the protection orders on or about 24 March 2023, albeit the document is dated 27 February 2023. The respondent nevertheless opposed the grant of leave, including on the basis of a lack of explanation for the delay.

[15]      I do not accept there is a sound basis to oppose the grant of leave. Mr Roberts has lodged his appeal in accordance with directions made by Thomas J, and he had earlier lodged an appeal against the without notice order. It would be unjust to say that Mr Roberts cannot pursue his appeal when he has acted in accordance with the directions given by this Court. I do not consider that it is appropriate for me not to grant leave on the basis of any analysis of the merits (or lack of them) of the appeal in those circumstances. Mr Roberts is also pursuing an appeal against the relationship property decision, so any decision declining leave will not bring the proceedings between the parties to an end.

[16]      Applying the above principles, therefore, I grant Mr Roberts application for leave to appeal the decision granting Ms Carroll a protection order against him.

Stay of orders under the Property (Relationships) Act

[17]      Mr Roberts also applies for a stay of the orders made by the Family Court under  the  Property  (Relationships)  Act.   Judge  Smith  made  such   orders  on   30 September 2022.9 The hearing proceeded on a formal proof basis. The Court had earlier made an order under r 401(3) of the Family Court Rules 2002 that the appellant not continue to be involved in the proceedings.10 Mr Roberts has appealed against the decision and seeks a stay of execution pending determination of his appeal.

[18]      The respondent’s key point in opposition is that all the orders of the Family Court have already been executed, and there is accordingly nothing to stay. At the hearing I asked Mr Roberts about this, and he confirmed that there were no further

9      Roberts v Carroll [2022] NZFC 9810.

10     Roberts v Carroll [2022] NZFC 8447.

execution steps that he was aware of. For that reason I agree that there is nothing for the Court to stay, and the application is accordingly dismissed.

Security for costs

[19]      The final matter is security for costs which are to be set for the two appeals that Mr Roberts can now pursue — the appeal against the making of the protection order against him, and the appeal in relation to relationship property.

[20]      Pursuant to r 20.13 the Court is obliged to fix security for costs at a case management conference unless the Judge considers that in the interests of justice no security is required.

[21]      The only basis for Mr Roberts to oppose security is his financial position. In the circumstances I directed he file an affidavit outlining his financial position so I could assess his argument. That affidavit has now been filed. The first 20 paragraphs do not seem to me to be relevant, but Mr Roberts effectively says he has no assets or income, and he is now unemployed.

[22]      In G v Chief Executive of the Ministry of Social Development the Supreme Court endorsed the approach under which security is to be regarded as the norm, and that exceptional circumstances are required to justify a waiver.11 Impecuniosity by itself does not justify a waiver although it may be a reason to reduce the quantum of security.12 Although I accept that Mr Roberts shows a degree of financial difficulty at present, I note that he resigned from his employment so that he could focus on these proceedings, so that his position is, to some extent, of his own making. I am also concerned that he has previously been subject to an order that he not participate in the proceedings because he has declined to comply with earlier directions of the Family Court. I also note that there has been a costs award already made against him that he has already not met. On the other hand he is a litigant in person, and the orders in relation to relationship property proceeded on a formal proof basis.

11     G v Chief Executive of the Ministry of Social Development [2010] NZSC 141, (2010) 20 PRNZ 705.

12     RIG v Chief Executive of the Ministry of Social Development [2010] NZCA 370, (2010) 20 PRNZ 703 at [3]–[4].

[23]      The amount awarded by way of security for costs under r 20.13(3) is modest although it can be increased by the Court. In the circumstances I think it is important that security be provided. The amount that I will fix will be a little higher than the standard amount given my directions below that Mr Manktelow prepare the case on appeal. There will accordingly be an order that Mr Roberts pay $4,780 to the Registrar by way of security no later than 15 working days of this judgment. As I stressed to Mr Roberts at the hearing, if he fails to pay into Court that amount by that time, his appeals will be deemed to be abandoned under s 126(3) of the District Court Act 2016.

Directions for appeal

[24]      Given the above conclusions I give the following directions for the hearing of the appeals:

(a)Mr Roberts is to pay the $4,780 into the Court within 15 working days as security for costs for the two appeals.

(b)The case on appeal for the two appeals is to be prepared by the respondent, with Mr Manktelow to discuss the content of the case on appeal with Mr Roberts. The case on appeal is to be lodged within 30 working days of release of this judgment if the security for costs is paid.

(c)The Registrar is to set down the appeals for hearing once security has been lodged as required, and after consultation with the parties on an appropriate date. One day will be allocated. I note that it may be appropriate for the appeal to be heard by remote means from a courtroom in Palmerston North.

(d)Mr Robert’s submissions in support of his two appeals are to be filed and served 10 working days prior to the hearing. The respondent’s submissions in response are to be filed and served five working days before the hearing.

Cooke J