Roche v Jansen
[2017] NZHC 207
•21 February 2017
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 ChildResult:
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 published. The names used have been adopted from the substantive judgment of the Family Court.
4 JPM v NHP FAM-2013-019-1507, FC Hamilton, Chambers Decision dated 3 June 2016.
made final parenting orders reversing the primary care of a child, Blake, born in October 2013, from his mother, who was residing in a Waikato township, to his father, who resides on Auckland's North Shore.5 The Judge declined to make transition orders so the parenting orders had immediate effect. The judgment brought to an end litigation between the parents which had been on foot for two-and- a-half years.
[5] On 13 May 2016, only seven days after the issue of the orders placing Blake in his father's primary care, the mother applied under s 139A, without notice, for leave to make an application for an order changing the final orders. She said that she had decided to move from her former Waikato home to live in Auckland in close proximity to the father and Blake, and that it was now feasible for her to have frequent contact with Blake and to implement a plan for transition of Blake's care to his father.
[6] The approved application pack for making orders under the Act combines information related to any leave application which may be required with information supporting and describing the substantive orders which are sought. In the leave section of the application, the mother acknowledged that she wanted to ask the Court under s 139A of the Act to let her apply for the change, because an order of the same type had been made in the last two years.
[7] The mother was directed by a Family Court Judge to serve a copy of the s 139A leave application and the intended new application under s 56(1)(a) on the father, and referred the matter to Judge Otene for a decision about leave to commence the new proceeding. After considering the submissions of counsel, including the lawyer for the child, Judge Otene delivered a Chambers Decision (“the s 139A decision”) in which she declined to grant the mother leave to apply and purported to dismiss the s 56(1)(a) application. The mother appealed to this Court (“the s 139A appeal”) against the refusal of leave, purporting to rely on s 143 of the
Act.
5 Jansen v Roche [2016] NZFC 3654.
[8] A separate notice of appeal against the final parenting orders (the substantive appeal) was filed in this Court on 30 May 2016.6
Preliminary jurisdictional issues
[9] The appeal raised two preliminary jurisdictional issues about appeals from decisions of the Family Court under s 139A refusing leave to commence a new proceeding:
(a) whether there is an appeal as of right under ss 143(1) and (2) of the
Act; and, if not
(b)whether there is a right of appeal with the leave of the Family Court under s 143(3).
Brief explanation of result
[10] I dismissed the s 139A appeal because:
(a) I concluded that this Court had no jurisdiction to hear the appeal; and, in case I should have been wrong in reaching that conclusion
(b)I considered the merits of the appeal and determined that the decision of the Family Court to refuse leave to commence the new proceeding under s 56(1)(a) was correct.
Outline of reasons for dismissing the appeal
[11] My reasons for these decisions follow. For convenience, I first set out an outline of my reasoning:
6 An amended notice of appeal was filed on 17 June 2016. A date for the hearing of the substantive appeal has not yet been set, in part because the parties have been awaiting the outcome of this application and the making of procedural directions.
Whether there is an appeal as of right under ss 143(1) and (2) of the COCA
(a) Section 143(2) of the Act provides that appeals to the High Court against decisions of the Family Court may be brought as of right if s 143(1) applies.
(b)Section 143(1) applies to decisions of the Family Court in proceedings under the Act (other than criminal proceedings) if the decision:
(i)was to make or refuse to make an order other than an interlocutory or interim order;7
(ii) was to dismiss the proceedings;8 or
(iii) otherwise finally determined the proceedings.9
(c) The Family Court’s decision to refuse to grant leave under s 139A to
commence a new proceeding under s 56(1)(a) of the Act:
(i)was a decision to refuse to make an interlocutory order, so that an appeal under s 143(1)(a) to the High Court from that refusal is expressly prohibited;
(ii)meant that the new proceedings were never commenced, so the refusal was not a decision to dismiss the proceedings; and
(iii)was not a decision which otherwise finally determined the new proceedings, because the new proceedings were never
commenced.
7 Care of Children Act, s 143(1)(a).
8 Section 143(1)(b).
9 Section 143(1)(c).
(d)It follows that the decision to refuse leave to commence the new proceeding was not a decision to which s 143(1) applies and that there was no appeal to the High Court as of right under s 143(2).
Whether there is a right of appeal with the leave of the Family Court under s 143(3)
(e) Subject to certain specific exceptions which do not apply,10 where an interlocutory order is made in proceedings in a Family Court under the Act, an appeal to the High Court against the order may be brought under s 143(3), with the leave of the Family Court.
(f) A decision of a Family Court to refuse leave under s 139A to commence a new proceeding is a decision to not make an interlocutory order; there is no “order” against which an appeal may be brought.
(g)It follows that there is no right of appeal (with or without leave) against a decision of the Family Court to refuse to make an interlocutory order, including a refusal to make an order under s 139A.
(h)If, contrary to my view, the mother did have a right to appeal under s 143(3) with the leave of the Family Court, no such leave was obtained.
Consideration of the merits of the appeal
(i)In case I should be wrong in my determination of these jurisdictional issues, and the mother had a right of appeal under s 143(1)(c) on the basis that the refusal of leave under s 139A finally determined the intended s 56(1)(a) proceedings, I considered the merits of the application under s 139A for leave to apply. I concluded that the Family Court Judge was right to find that there had been no material
change of circumstances since the making of the final parenting orders and to refuse leave to commence the new proceedings.
The nature of the leave application
[12] Although the two preliminary jurisdictional questions are to be determined principally as a matter of statutory interpretation, the answers are informed by the nature and circumstances of the application for leave under s 139A.
[13] At the time the final parenting orders were made, the mother was living in a Waikato township and the father was living on Auckland’s North Shore. The parenting orders, which granted the father day-to-day care of Blake, had the immediate effect of changing the parenting responsibilities.
[14] The mother said in her leave application under s 139A that her circumstances had changed since the making of the final orders in that she would be moving to North Shore, Auckland, so that it would be easier for Blake to have contact with her. She said that the move would make it possible for the Court to consider a transition period for the change in primary parenting responsibilities whereas none was considered at the hearing. On that basis, she argued that the change was material; that her application to change the final orders made on 6 May 2016 was justifiable; and that she should be allowed to commence it.
[15] At [102] of the substantive judgment, Judge Otene said that she had reached the decision that the welfare and best interests of Blake would be served in the day- to-day care of his father, with contact with his mother, and that the new arrangements should be put in place immediately rather than after a period of suspension. The Judge set out her reasons in these terms:
(a) Given [the mother's] attitude towards [the father] and her perception of matters concerning [Blake] with the father there is real [sic] risk that the quality of [Blake's] relationship with [his father] and paternal family will be undermined, diminished and alienated. Aligned with that is a real risk to [Blake's] healthy psychological development.
(b) If [Blake] remains in [the mother's] care there are no factors that significantly mitigate those risks because her parents share a similar attitude and perception.
(c) Given the critical state of [Blake's] development and the further consideration that he will be starting school in 18 months and so needs to have settled arrangements, it is not acceptable to provide further time in the hope that [the mother] will successfully address the matters of concern.
(d) Whilst the disruption to [Blake's] attachment with [the mother] (and to a lesser extent his wider maternal family) will be significant it is balanced by [Blake's] psychological resilience, his attachment to [the father] and other paternal family members, the quality of care [the father] can provide and the willingness and ability of [the father] to obtain professional assistance as necessary.
(e) I am satisfied that [the father] and his family are capable of fostering a positive relationship with [the mother] and her family in a way that [the mother] and her family have been unable to and are unlikely to reciprocate.
(f) [Blake's] attachment to the mother requires there to be ongoing contact and I am satisfied that should be on an unsupervised basis. The identified risks are balanced by the greater period time he will be in [the father's] care.
[16] Significantly, the Judge addressed at [103] whether the orders should be made on an interim basis; not to review the father’s day-to-day care, but rather to consider whether the contact arrangements with the mother were working in Blake's best interests and welfare. The Judge said that she had elected not to do so because she had determined that the greater interest lay in establishing settled arrangements that removed from Blake the prospect of change and exposure to potential further dispute that has accompanied him all of his life.
[17] The Judge referred specifically to her confidence in the father's ability to foster a positive relationship between Blake and his mother. The Judge said:11
It is my expectation that if [Blake] needs to spend more time with [his mother], [his father] will facilitate that without either party making [Blake] the subject of further Court proceedings.
[18] In her application under s 139A for leave to appeal, the mother referred to the following statement made by Judge Otene in her substantive judgment at [44]:
Given the geographical distance between the parties there is really no practically workable intermediate position to either graduate a transfer in care or otherwise ensure contact with both parents at the very frequent intervals that would be optimal for a child of [Blake's] age.
The mother submitted that it was clear that the Judge would have preferred a more gradual transition to the father's full-time care if it had appeared feasible. She said that a transition plan was now feasible and needed to be considered. The mother said:
During the hearing I was not asked whether I would consider moving to Auckland if [Blake] was placed into [his father's] day-to-day care. It was not raised as an option.
Section 139A of the COCA
[19] Section 139A of the Act is in the following terms:
139ALeave required in certain cases to commence substantially similar proceedings
(1) A proceeding (a new proceeding) may not be commenced under section 46R, 48, or 56 without the leave of the court if that new proceeding–
(a) is substantially similar to a proceeding previously filed in a
Family Court by any person (a previous proceeding); and
(b) is to be commenced less than 2 years after the final direction or order was given in the previous proceeding.
(2) The leave of the court may only be given under subsection (1) if, since the final direction or order was given in the previous proceeding, there has been a material change in the circumstances of–
(a) any party to the previous proceeding:
(b) any child who was the subject of the previous proceeding.
(3) In this section, a new proceeding is substantially similar to a previous proceeding if–
(a) the party commencing the new proceeding was a party to the previous proceeding; and
(b) a child who is the subject of the new proceeding was the subject of the previous proceeding; and
(c) the new proceeding–
(i) is commenced under the same provision of this Act as the previous proceeding; or
(ii) is for an order varying the order made in the previous proceeding; or
(iii) is for an order discharging the order made in the previous proceeding.
(4) This section does not apply if every party to the new proceeding consents to its commencement.
The submissions on the leave application under s 139A
[20] In a memorandum filed in support of the s 139A application, counsel for the mother, Mrs Simes, said that the intended application under s 56(1)(a) was not an attempt to "revisit the overall decision [but was] an attempt to achieve a better outcome for [Blake] within the main parameters of the decision" that had been made.
[21] Judge Otene also received memoranda from Ms Walker, counsel for the father, and from Ms Bogers, who had acted as lawyer for the child in the parenting proceedings. They opposed the grant of leave.
[22] Ms Walker submitted that the application should not have been made on a without notice basis and that, in any event, leave should not be granted as the grounds did not meet the required threshold. Ms Walker asserted that, during the hearing, the mother had been asked what her proposal for contact would be should the day-to-day care of Blake be reversed, and that the mother did not take that opportunity to indicate that she might consider moving to Auckland.
[23] Ms Bogers submitted that the evidence upon which the mother now sought to rely was not new evidence and that she had had an opportunity to place it before the Family Court. She argued that Blake's interests required finality and an end to litigation.
The Family Court’s s 139A decision
[24] In the s 139A decision, Judge Otene noted that the new proceeding under s 56(1)(a) which was proposed by the mother was a substantially similar proceeding
to the previous parenting proceeding and that it had been commenced within two years after the final order was given. The Judge said leave could only be given if, since the making of the final order, there had been a material change in the circumstances of the mother, the father or Blake.12
[25] Judge Otene considered what was required to be established by way of a "material change in circumstances" before it would be proper to grant leave. She adopted an observation by Judge L De Jong in Border v Tokoroa13 that a material change should be a significant material change in the circumstances of a child or party triggering s 4 considerations; that is, considerations as to the welfare and best interests of the child. The Judge also agreed with a statement by Judge S Maude in Roundtree v Tipsanich14 that to qualify as a material change it must be a change that, if placed before the judge who heard the proceedings earlier, would have likely led the judge to a different conclusion. It was not argued in this appeal that those propositions were wrong.
[26] In her leave application the mother said that, but for the geographical difference preventing a transition plan being put in place, it was clear the Judge would have preferred a more gradual transition of care and that, now that such was feasible, it needed to be considered. Judge Otene said that that submission overstated her observations in the substantive judgment and that they had to be considered in the context of her overall findings. The Judge said:
[12] As articulated at paragraph [102] of my decision [the mother's] attitude and perception were pivotal to my assessment of [Blake's] welfare and best interests. I reversed care immediately rather than in a graduated manner acknowledging the disruption that it would cause for [Blake] but having determined that there were countervailing factors that adequately balanced that disruption.
[13] Absent any change in [the mother's] fundamental attitudes and perception, the geographical change does not contribute to [Blake's] welfare and best interests in a manner that would have likely lead me to a different conclusion. Indeed in light of those attitudes and perception her proposal that in addition to the fortnightly weekend contact she have contact three days per week for up to six hours may be to heighten a real risk identified in
12 Care of Children Act, s 139(2).
13 Border v Tokoroa [2014] NZFC 10947, [2014] NZFLR 832 at [36].
14 Roundtree v Tipsanich [2015] NZFC 5488, [2016] NZFLR 99.
my judgment, that is the risk that [Blake's] relationship with his father or paternal family would be undermined, diminished or alienated.
[14] [The mother's] relocation to Auckland is not a material change in her circumstances. The application for leave is declined. The substantive application cannot proceed, so is dismissed.
Preliminary jurisdictional issues
[27] It is convenient to restate the two preliminary jurisdictional issues about appeals from decisions of Family Courts15 under s 139A refusing leave to commence a new proceeding, namely:
(a) whether there is an appeal as of right under ss 143(1) and (2) of the
Act; and, if not
(b)whether there is a right of appeal with the leave of the Family Court under s 143(3).
The relevant statutory provisions
Appeals under s 143, Care of Children Act
[28] Appeals to the High Court from decisions of a Family Court in proceedings under the COCA are governed by s 143 of the Act. At the time of the filing of the leave appeal to this Court, it provided (so far as is relevant):
143 Appeals to High Court
(1) This subsection applies to a decision of a Family Court or District Court, in proceedings under this Act (other than criminal proceedings), to—
(a) make or refuse to make an order (other than an interlocutory or interim order); or
(b) dismiss the proceedings; or
(c) otherwise finally determine the proceedings.
15 Subsection (1) is to be amended, as from 1 March 2017, by s 261 District Court Act 2016 (2016
No 49) by substituting “the Family Court” for “a Family Court”.
(2) A party to proceedings in which there is made a decision to which subsection (1) applies, or a child to whom those proceedings relate, may appeal to the High Court against the decision. However, if the proceedings are under section 46C or section 46R, the party or child may appeal only with the leave of the High Court.
(3) A party to proceedings under this Act in a Family Court or District Court in which an interlocutory or interim order is made, or a child to whom those proceedings relate, may, with the leave of the Family Court or District Court (as the case requires), appeal to the High Court against the order.
(3A) However, no appeal may be made to the High Court under subsection (3) in relation to–
(a) any interlocutory or interim order made in the following kinds of proceedings:
(i) criminal proceedings; or
(ii) proceedings under section 46C; or
(iii) proceedings under section 46R; or
(b) a decision under–
(i) section 7 to appoint, or to direct the Registrar of the court to appoint, a lawyer to represent a child; or
(ii) section 130 to appoint, or to direct the Registrar of the court to appoint, a lawyer to assist the court; or
(iii) section 133 to obtain a written cultural report, medical report, psychiatric report, or psychological report; or
(c) a direction under section 7A(6) that the parties may, or may not, be represented at a settlement conference.
(4) The High Court Rules and sections 73 to 78 of the District Courts Act 1947, with all necessary modifications, apply to an appeal under this section as if it were an appeal under section 72 of that Act….
Is there an appeal as of right under ss 143(1) and (2) for an application for leave under s 139A of the Act?
[29] Section 143(1), read in conjunction with subsection (2), provides a general right of appeal to the High Court against a decision of a Family Court to make or refuse an order, or dismiss the proceedings, or otherwise finally determine the proceedings. The leave of the High Court is required to appeal under s 143(1) in certain circumstances which are not relevant here. The right of appeal provided by
ss 143(1)(a) and (2), however, is expressly excluded if the decision of a Family Court which is sought to be appealed is a decision to make or refuse an interlocutory or interim order.16 A party aggrieved by a decision of the Family Court on an interlocutory or interim matter must look at s 143(3) to see whether an appeal may be available with the leave of that Court.
Is an application for leave under s 139A an application for an “interlocutory order”?
[30] In considering whether the mother was entitled to appeal as of right against Judge Otene’s decision under s 139A, the first question for determination is whether the decision was a decision to make or refuse an interlocutory order. If not, it may be appealed as of right by virtue of s 143(2).
[31] The Act does not contain any definition of “interlocutory order”, so the meaning of the expression as used in s 143 must be ascertained by the courts from its text and in the light of the statutory purpose.17 Some guidance in determining the meaning may be derived from the High Court Rules and the District Courts Act
1947, which are invoked by s 143(4) as if an appeal under s 143 was an appeal under s 72 of that Act. The provisions of the Family Courts Rules 2002 may also assist.
[32] An order made on an application for leave under s 139A falls within the definition of "interlocutory order" in r 1.3 of the High Court Rules as:
an order or a direction of the court that … is made or given for the purposes of a proceeding or an intended proceeding… and … concerns a matter of procedure or grants some relief ancillary to that claimed in a pleading ….
[33] Similarly, s 2 of the District Courts Act defines “interlocutory application” as:
any application to the court in any proceeding or intended proceeding for an order or a direction relating to a matter of procedure or for some relief ancillary to that claimed in a pleading ....
[34] The application would also fit comfortably within the definition of
“interlocutory application” in r 8 of the Family Court Rules in that it is:
an application in proceedings or intended proceedings for an order or a direction relating to a matter of procedure or for some relief ancillary to the orders or declarations sought in the proceedings or intended proceedings ….
[35] Section 3(1) of the Act provides that its purposes are to:
(a) Promote children's welfare and best interests, and facilitate their development, by helping to ensure that appropriate arrangements are in place for their guardianship and care; and
(b) Recognise certain rights of children.
[36] Section 3(2) says that, to that end, the Act encourages agreed arrangements for, and provides for the resolution of disputes about, the care of children. By s 4 of the Act, the welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration in proceedings under the Act. The Act should be interpreted and applied in a manner which is consistent with those provisions.
[37] It is worth repeating that s 139A(1) provides that a new proceeding may not be commenced under s 56 of the Act without the leave of the Court if that new proceeding is substantially similar to a proceeding previously filed in the Family Court by any person and is to be commenced less than two years after the final direction or order was given in the previous proceeding. Section 139A was inserted by s 33 of the Care of Children Amendment Act (No. 2) 2013. Introducing a default position of a two-year moratorium on challenging final parenting orders, together with other amendments, was intended to discourage parents and carers from attempting to overturn settled child care arrangements by court proceedings and to encourage parents to resolve matters themselves where possible. During the Parliamentary debates, when the purpose of the amendment bill to make the Family Courts "more efficient and effective" was described, what ultimately became s 139A was specifically identified as furthering that objective: "For example, if a person received a judgment less than 2 years ago, they will require the court’s leave to
commence similar proceedings about the care of children."18
18 (4 December 2012) 686 NZPD 7029.
[38] It is consistent with relevant statutory provisions and the purposes of the Act to characterise an application for leave to commence an application for orders changing a final parenting order made less than two years earlier as an interlocutory application related to an intended proceeding. It is procedural and ancillary to the relief which would be sought if the intended proceeding was commenced.
[39] My conclusion that a refusal of leave under s 139A is an interlocutory decision from which there is no appeal as of right is contrary to the view of Palmer J in Kibble v Lambda.19 In that case, the Judge said, at [32], that if a decision under s 139A to decline leave was characterised as a decision on an interlocutory application:
... the substantive outcome of the new proceeding would not be able to be appealed as of right. That seems to me to be antithetical to the purpose of s 143(1) in distinguishing between interlocutory or interim orders, which require the leave of the Family Court to be appealed, and decisions which "finally determine" proceedings, which can be appealed as of right.
[33] I acknowledge that my decision is different from that of Thomas J in Re Fidow in relation to summary judgments. But that was a different context with a different, wider, statutory purpose. Here, while one of the purposes of the 2013 amendments was to limit the proliferation of litigation, it was not to limit the High Court's ability to ensure that the substantive outcome of a proceeding is correct and made according to law.
[40] I understand that a necessary consequence of a refusal of leave to commence an intended substantive proceeding is that the applicant is denied the opportunity to obtain the substantive relief he or she seeks. I also acknowledge that, if s 143(1) does not apply to such refusal, the applicant will not be able to challenge that outcome as of right. But I respectfully disagree that such a result is inconsistent with the statutory purposes of the Act. That is because I do not accept the proposition that underlies Palmer J’s analysis; namely, that the statutory intention is to ensure that every decision of the Family Court which has the effect of depriving a party of a substantive outcome they may desire must be capable of appellate scrutiny by the
High Court. For reasons I discuss below,20 I consider Parliament’s approach to be
more nuanced than simply providing that interlocutory orders “require the leave of
the Family Court to be appealed, and decisions which ‘finally determine’
proceedings … can be appealed as of right.”21
Does the refusal of leave under s 139A dismiss (s 143(1)(b)) or finally determine
(s 143(1)(c)) the new proceeding?
[41] The conclusion in Kibble v Lambda that a refusal to grant a s 139A application finally determines proceedings was based on the proposition that an application under s 139A for leave "is characterised by s 139A(1) as a new proceeding."22 I suggest respectfully that this view, with which counsel for the parties agreed, is founded on a mis-reading of the section. Subsection (1) reads:
(1) A proceeding (a new proceeding) may not be commenced under section
46R, 48, or 56 without the leave of the court …. [emphasis added]
[42] It is clear from the wording of the section, in my view, that the leave application under s 139A is not the “new proceeding”; it is a necessary interlocutory gateway through which the intended application must pass prior to the commencement of the intended new proceeding under s 56.
[43] A Family Court’s decision to refuse to grant leave under s 139A means the new proceedings are never commenced. It follows that the refusal cannot be a decision to dismiss the proceedings for the purposes of s 143(1)(b). It follows also that I respectfully disagree with Palmer J's proposition in Kibble v Lambda that a decision on the s 139A application "disposes of, and finally determines, the new proceeding unless appealed."23 If leave is refused, the new proceeding never gets under way, so it cannot be said to have been finally determined.
[44] It follows that Judge Otene’s order purporting to dismiss the s 56(1)(a)
application was a nullity.
21 Kibble v Lambda, above n 19, at [32].
22 At [31].
[45] My conclusion is supported by the decisions of Gendall J in Tait-Jones v
Taylor-Jones24 and Ellis J in FB v TW25 which are discussed more fully below.26
Most pertinently, Ellis J said in FB v TW:27
Nor do I consider that the refusal of leave can properly be viewed as a decision to "dismiss" or "otherwise finally determine" the proceedings. That is because there are no "proceedings" to be dismissed or determined unless or until leave is granted.
[46] The reasoning of Thomas J in Re Fidow, ex parte Registered Securities Ltd (In Liquidation),28 although related to an application for summary judgment, is analogous. Thomas J concluded that a decision that a defendant has no valid defence, with the result that judgment is entered for the plaintiff, does not amount to a resolution of the matters pleaded in the statement of claim. The entry of summary judgment against a defendant prevents the substantive claim from ever being addressed.
No appeal as of right under s 143(1)
[47] To summarise my conclusions on s 143(1), I consider that an unsuccessful applicant under s 139A who is refused leave to bring a s 56 application within two years after the final direction or order given in the previous proceeding cannot take advantage of s 143(1) of the Act to appeal that refusal because:
(a) the Court's decision to refuse an order under s 139A is the refusal to make an interlocutory order and is precluded by the proviso in s 143(1)(a);
(b)does not involve the dismissal of the proceedings because the proceedings are never commenced in the absence of leave; and
(c) for the same reason, does not finally determine the proceedings.
24 Tait-Jones v Taylor-Jones (1999) 13 PRNZ 308.
25 FB v TW [2015] NZHC 2129, (2015) 30 FRNZ 330.
26 At [53] and [54].
27 FB v TW, above n 25, at [12].
May an applicant who is refused leave under s 139A appeal with the leave of the
Family Court?
[48] Having reached the conclusion that the refusal of leave under s 139A is not susceptible to an appeal as of right, I turned to consider whether an unsuccessful applicant for leave under s 139A may rely on s 143(3) of the Act to bring an appeal with the leave of the Family Court. I repeat the relevant parts of the subsection:
(3) A party to proceedings under this Act in a Family Court … in which an interlocutory or interim order is made, or a child to whom those proceedings relate, may, with the leave of the Family Court … , appeal to the High Court against the order.
[49] The immediate difficulty of applying s 143(3) to a case in which leave has been refused is that no interlocutory order has been made; the Family Court has declined to make an interlocutory order granting leave. That was the view of Duffy J in Gordon v Campbell, where the Judge said, in relation to a refusal to grant leave under s 139A:29
On a plain reading of s 143(3), it is the making of an "interlocutory or interim order" by the Family Court that provides the foundation for an appeal under the subsection. Before s 143(3) could be applied to the present matter, the language of s 143(3) which refers to "proceedings ... in which an interlocutory or interim order is made", would need to be read as if it included the phrase "or not made as the case may be". The draftsperson of s 143 has expressly referred to "a decision of the Family Court ... to make or refuse to make an order" in subsection (1), and then avoided the use of this phrase in subsection (3). Had the intent been to have s 143(3) create a "leave appeal right" for Family Court decisions to make or refuse an interlocutory order, that could readily have been done using language that was similar to that used in s 143(1). In such circumstances, I cannot place a gloss on s 143(3) to achieve that outcome.
(emphasis added).
[50] Significantly, Duffy J went on to say that it seemed to her "that Parliament may not have intended to permit all refusals of interlocutory orders to be subject to appeal."30 In a footnote to that observation, Duffy J referred to the recognition of a policy requirement in s 143(3) to prevent proceedings under the Act from becoming unduly protracted. I agree that minimising the potential for parties to prolong litigation is achieved through provisions which limit the potential for appeals.
[51] Without deciding the point, Duffy J considered that, as an alternative possibility, s 72 of the District Courts Act 1947 might allow such appeals. That section provides:31
72 General right of appeal
(1) This subsection applies to every decision made by a District Court other than a decision of a kind in respect of which an enactment other than this Act—
(a) expressly confers a right of appeal; or
(b) provides expressly that there is no right of appeal.
(2) A party to proceedings in a District Court may appeal to the High Court against the whole or any part of any decision to which subsection (1) applies made by the District Court in or in relation to the proceedings.
[52] I do not think s 72 of the District Courts Act assists. Bearing in mind that s
143(1)(a) “provides expressly that there is no right of appeal” against a refusal of
leave under s 139A, the effect of s 72(1)(b) is that s 72(2) does not apply.
[53] In FB v TW, Ellis J also concluded that an appeal against a refusal of leave to apply for a parenting order was a decision on an interlocutory application and that no appeal as of right is provided by s 143(1) and (2). The Judge agreed with the conclusion of Gendall J in Tait-Jones v Taylor-Jones that an application for leave to bring proceedings is an interlocutory application and that the refusal of leave does not amount to a dismissal of the proceedings or a final determination of them. That is because the proceedings “never obtained their own life force … (t)hey were never
commenced.”32 Without further discussion, Ellis J went on to say that s 143(3)
provided a right of appeal by leave of the Family Court. In expressing that view, however, the Judge did not address the point that s 143(3) applies only to appeals against the making of interlocutory orders and does not apply where an interlocutory order is not made.
[54] That may be because of Ellis J’s general approval of the reasoning of the
Court in Tait-Jones v Taylor-Jones. Tait-Jones pre-dated the enactment of s 143 in
2004 and the appeal rights under consideration were provided by the District Courts Act. Gendall J concluded that the refusal of an interlocutory order could be appealed by leave because of s 71 of that Act which defined an interlocutory order as “a decision or order made by the Court in relation to an interlocutory application”. While that definition plainly encompasses a decision refusing to make an interlocutory order, the section and the companion provisions in the District Courts
Act have been repealed and no longer apply to Family Court proceedings.33
[55] A plain meaning approach to interpreting s 143(3) leads inevitably to the conclusion that a right of appeal exists by leave of a Family Court where an interlocutory order has been made, but not where such an order has been refused.
Conclusion: No right of appeal as of right or by leave
[56] The result for the purposes of this case is that a Family Court’s refusal to grant leave under s139A to make an application under s 56(1)(a) to change the final parenting orders is not appealable as of right under ss 143(1) and (2), and not appealable with leave under s 143(3).
[57] I do not regard that position as contrary to the statutory policy or illogical.
Is the absence of any ability to appeal a refusal of leave consistent with the statutory purposes?
[58] I see nothing in the view that no right of appeal exists under s 143 that is inconsistent with the legislative intention that, once a specialist Family Court has made a considered final determination about the parenting of a child, the arrangements should not be overturned within two years unless there has been a material change of circumstances since the original orders were made. The Family Court, having been the court in which the existing parenting orders were made, is best placed to decide whether a material change of circumstances has occurred, such
as to justify the granting of leave.
33 Sections 71 and 72 substituted, on 24 November 2003, by s 3 of the District Courts Amendment Act 2002 (2002 No 63). Section 71A repealed, on 24 November 2003, by s 3 of the District Courts Amendment Act 2002 (2002 No 63).
[59] I endorse the observations of Judge RJ Russell in Pidgeman v Oliver:
Section 139A was an amendment brought into the Care of Children Act to prevent continual and repeated litigation for issues affecting a child or children. The intention was that once a parenting order is made by the Court, which first satisfies itself the care arrangements are in the welfare and best interests of the child, there should be a two year period following in which the parties need to get on and make the care arrangements work. Continual litigation diverts parents’ attentions and resources from properly parenting their child. As a child grows older his or her needs will evolve and change, and parenting arrangements need to be reviewed. Parliament considered two years is an appropriate minimum time for such reviews to occur.34
[60] The point of requiring a Family Court to give leave under s 139A, if a parent or carer wishes to ask the Court to make changes to established parenting arrangements, is to vest in the Family Court the ability to determine whether it is proper, in terms of the statutory regime, to allow an exceptional application for the making of such changes to be heard before the minimum period has expired. The legislative regime recognises that, even if an order under s 56 changing the parenting arrangements is not made after the application is heard, the proceeding dealing with an application to make changes is itself likely to be, at best, unsettling and distracting, and at worst, debilitating and destructive of the good order created by adhering to settled arrangements. Almost inevitably, a child caught up in an application under s 56 would be affected directly by the court proceeding: through the appointment of a lawyer for the child, who would be required to meet and consult with the child in order to investigate and report, and through the likely ordering of a report from a specialist under s 133, also requiring investigation and professional interaction with the child.
[61] In my view, preserving a right of appeal, whether as of right or by leave, from a finding that there has been no material change of circumstances would not assist the statutory purposes of limiting the ability of parents and carers to prolong the litigation by challenging concluded matters, and of encouraging them to seek resolution by agreement rather than by court orders. Any concern that a Family Court Judge who refuses leave has taken into account irrelevant considerations, or failed to take relevant considerations into account, or has reached a wholly aberrant
conclusion, may be addressed in judicial review proceedings. That position meets the concern of Palmer J in Kibble v Lambda that the High Court should be in a position to ensure that decisions of the Family Courts are made according to law.35
However, it is consistent with the statutory purpose of limiting opportunities to prolong litigation over the parenting of children to hold that the considered view of a specialist judge, that no application to change final parenting orders should be allowed to commence, is not susceptible to being overridden on appeal.
It is not illogical to disallow any appeal from a refusal to grant leave to apply to change a parenting order but to permit an appeal by leave from the granting of leave
[62] I have concluded that s 143(3) is confined to permitting appeals by leave from the making of interlocutory orders and that it does not allow appeals by leave from the refusal of a Family Court to make an order. I see no inconsistency or illogicality in that finding.
[63] If a Family Court grants leave to apply under s 56 for an order changing a parenting order less than two years after it was made, there are good policy reasons why the aggrieved party should have a right, with the leave of the Family Court, to challenge the grant of leave. I take the present case as an illustration. If leave had been granted by Judge Otene, the father and the child would have been brought into further litigation in circumstances where a final order for parenting had been made only a few days before the leave application was filed. It is entirely consistent with the legislative purposes of certainty and stability to allow a parent in such circumstances to challenge the substance of the Family Court’s decision to allow a re-opening of the parenting issues.
Reasoning applies generally to refusal by a Family Court of applications under
COCA for interlocutory or interim orders
[64] The reasoning which compels the conclusion that there is no right of appeal under s 143(3) against the refusal of leave under s 139A applies generally to a Family Court’s refusal of any interlocutory or interim order under the COCA. The making of an interlocutory or interim order alters the status quo, albeit temporarily in
the case of interim orders. The refusal of a court to make an interlocutory or interim order preserves the status quo. It is consistent with the statutory purposes of keeping settled arrangements in place and of limiting opportunities for prolonging litigation under the Act to permit a right of appeal by leave where an order is made while denying it when an order is refused.
[65] Conversely, limiting rights of appeal against the refusal to make an interlocutory or interim order is consistent with the rules for the conduct of proceedings in a Family Court which are intended to to make it possible for proceedings in Family Courts to be dealt with “as fairly, inexpensively, simply, and
speedily as is consistent with justice”.36
[66] These views are consistent with the specific prohibition, in s 143(3A), of appeals by leave under s 143(3) against the making of interlocutory or interim orders in certain types of proceeding but not the refusal of such orders. It is not necessary for s 143(3A) to prohibit appeals against the refusal of a Family Court to make such orders because s 143(3) does not confer any right of appeal in such cases.
Mother did not obtain leave to appeal in this case
[67] For completeness, I record that, if my view of the limitations of s 143(3) is wrong, and a right of appeal was available to the mother by leave under that subsection, this appeal was bound to fail in any event because the leave of the Family Court was not obtained.
Summary of views on jurisdiction
[68] For the reasons given, I concluded that this Court had no jurisdiction to hear the appeal:
(a) The mother had no right of appeal under s 143(1) and (2) of the Act against the refusal of leave to apply under s 56(1)(a), because:
(i)the decision of the Family Court was to refuse to make an interlocutory order, an appeal from which is expressly prohibited;37
(ii)in the absence to leave to apply, the intended application under s 56(1)(a) was never commenced so the purported dismissal of it was a nullity and the mother could not rely on s 143(1)(b) to bring an appeal; and
(iii)the Family Court did not address the intended proceedings under s 56(1)(a) so it could not be said to finally determine the proceedings for the purposes of an appeal under s 143(1)(c);
(b)The mother did not have a right of appeal with the leave of the Family Court under s 143(3) because an interlocutory order was not made; and
(c) If the mother did have a right under subsection (3) to appeal with the leave of the Family Court, no such leave was obtained.
Consideration of the merits of the appeal
[69] In case I should have been wrong in my determination of these jurisdictional issues, and the mother was entitled to appeal to this Court as of right under s 143(1), on the basis that the refusal of leave finally determined the intended proceedings under s 56(1)(a),38 I considered the merits of Judge Otene’s decision under s 139A that leave to apply should be refused.
[70] In my view, the application for leave under s 139A was misconceived. It was based on a misunderstanding of the principal reasons for Judge Otene's decision that the new parenting arrangements should be put in place immediately rather than after
a period of suspension or transition.
37 Care of Children Act, s 143(1)(a).
38 As Palmer J did in Kibble v Lambda, above n 19.
[71] It is clear from the passage at [102] of the substantive judgment, which is set out above at [15], that the Judge was concerned, on the basis of the mother's attitude towards the father and her perception of matters concerning Blake with the father, that there were real risks that Blake's relationship with his father and paternal family would be undermined, leading to a risk to Blake's healthy psychological development. Given the critical state of Blake's development, the Judge was not prepared to provide further time in the hope that the mother would address the matters of concern. Acknowledging that Blake's attachment to his mother would be significantly disrupted, the child’s psychological resistance, his attachment to his father and his father's family and the quality of care his father could provide would balance and ameliorate such disruption. The Judge was satisfied that the father and his family would foster a positive relationship with the mother and her family in a way which would facilitate the ongoing contact between Blake and his mother on an unsupervised basis. The Judge considered that it was more important to establish settled arrangements immediately rather than treat them as interim and subject to review.
[72] Although it is true that the Judge commented that the distance between what were then the parents' respective residences in the Waikato and on Auckland's North Shore would preclude a graduated transfer, the 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.
[73] Although Mrs Simes was critical of a situation in which the Judge who made the substantive decision determined the leave application, that practice makes far more sense than placing the leave application before a Judge not fully engaged in the decision-making process leading up to the making of the parenting orders. Judge Otene was better placed than anyone else to identify what circumstances were material to her original decision and to assess whether any purported change in circumstances was, in fact, material.
[74] It was not necessary for Judge Otene to determine whether the mother's decision to move to Auckland within a few days of the making of the parenting orders was disingenuous. It was necessary only for the Judge to consider whether
the move represented a change of circumstances and, if so, whether it was so material as to justify granting the mother a further opportunity to argue in favour of different parenting orders from those which had only recently been made.
[75] The Judge was not only entitled to come to the view that she did; it was the right decision.
Result and costs
[76] For the reasons given, I dismissed the appeal.
[77] The father is entitled to costs but legal aid considerations may be relevant. Any application for costs shall be by way of memorandum filed and served not later than 17 March 2017. Any memorandum in reply shall be filed and served not later than 7 April 2017. The question of costs will then be determined on the papers unless the Court directs otherwise.
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Toogood J
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