Roche v Jansen - [2017] NZHC 207

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

THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2016-419-0186 [2017] NZHC 207

IN THE MATTER of the Care of Children Act 2004

BETWEEN

DARINA ROCHE Appellant

AND

RONAN JANSEN Respondent

Hearing: 21 November 2016

Appearances:

C Simes for Appellant
J Walker for Respondent
DA Bogers, Lawyer for the Child

Result:

16 December 2016

Reasons:

21 February 2017

REASONS JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 21 February 2017 at 3.00 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Roche v Jansen [2017] NZHC 207 [21 February 2017]

Introduction

[1] Section 139A(1) of the Care of Children Act 2004 ("the Act" or “COCA”) provides that a new proceeding applying for a change to a final parenting order may not be commenced less than two years after the final order was given, without the leave of a Family Court. The leave of the Court to commence a new proceeding of that nature may be given only if there has been a material change in the circumstances since the final order was made.1 On 16 December 2016, I issued a
result judgment2 dismissing an appeal by Ms Darina Roche3 against a decision of

Judge SD Otene in the Family Court at Hamilton4 refusing to grant her leave to apply under s 56(1)(a) of the Act for an order changing parenting orders made only a month previously.

[2] This judgment sets out my reasons for doing so. It addresses important issues about whether and in what circumstances there may be a right of appeal to this Court from the refusal of the Family Court to grant leave under s 139A.

[3] The reasoning in the judgment also addresses the more general issue of whether there is any right of appeal to this Court, with the leave of a Family Court, from the refusal of a Family Court to make an interlocutory or interim order in any proceedings under the Act. I have concluded that, while s 143(3) entitles a party to a Family Court proceeding to appeal against the making of an interlocutory or interim order with the leave of that Court, the Care of Children Act does not provide a right of appeal against the refusal of a Family Court to make an interlocutory or interim order.

Background

[4] On 6 May 2016, following a seven-day hearing, Judge S D Otene delivered a

judgment (“the substantive judgment”) in the Family Court at Hamilton in which she

1      Care of Children Act 2004, s 139A(2).
2      NP v JM [2016] NZHC 3090.
3      The names of the parents have been anonymised and the name of the child has been changed in this judgment, consistently with the requirement that the identity of the parties and the child shall not be…

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 Roche v Jansen

Details

AGLC: Roche v Jansen [2017] NZHC 207
Case: [2017] NZHC 207
Decision Date: 21 February 2017

CaseChat Overview and Summary

In the High Court of New Zealand, the appeal by Darina Roche against a decision of the Family Court refusing her leave to apply under s 56(1)(a) of the Care of Children Act 2004 for an order changing parenting orders made only a month previously was dismissed. The court concluded that the Family Court's decision to refuse to grant leave under s 139A to commence a new proceeding was not appealable as of right under ss 143(1) and (2), and not appealable with leave under s 143(3). The court found that the refusal of leave under s 139A was not appealable as of right because it was a decision to refuse to make an interlocutory order, which is expressly prohibited by s 143(1)(a). The court also found that the refusal of leave under s 139A did not finally determine the new proceedings, because the new proceedings were never commenced in the absence of leave. The court concluded that there was no right of appeal with the leave of the Family Court under s 143(3) because an interlocutory order was not made. In case the court was wrong in its determination of these jurisdictional issues, and the mother was entitled to appeal to this court as of right under s 143(1), the court considered the merits of Judge Otene's decision under s 139A that leave to apply should be refused. The court found that the application for leave under s 139A was misconceived and that the Family Court Judge was entitled to hold in her decision on the application for leave under s 139A that a graduated transfer would not be desirable, notwithstanding the mother's decision to move to Auckland. The court concluded that it was the right decision.

Orders