Ryan v Ryan

[2023] NZHC 3400

NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,

PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing- judgments/

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2022-419-357

[2023] NZHC 3400

BETWEEN

JOHN RYAN

Applicant

AND

MARY RYAN

Respondent

Hearing:

17 October 2023

Appearances:

D Grimes for the applicant

S Murdoch for the respondent

Judgment:

28 November 2023

JUDGMENT OF ROBINSON J

[Application for special leave to extend time to appeal]

This judgment was delivered by me on 28 November 2023 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/counsel:

Thomson Wilson, Whangārei Niemand Peebles Hoult, Hamilton

RYAN v RYAN [2023] NZHC 3400 [28 November 2023]

Introduction1

[1]    On 25 May 2022 Judge Paul in the Family Court at Hamilton granted the respondent’s Without Notice Application for a Temporary Protection Order pursuant to s 79 of the Family Violence Act 2018 (Act).2 The protected persons include the respondent and one of the respondent’s grandparents. On the same day in the Family Court Judge Paul also made a substituted service order that service on the applicant be effected by way of his Facebook account.

[2]    The applicant took no steps in relation to the Temporary Protection Order. On 26 August 2022 the Temporary Protection Order became final by operation of law.3

[3]    On 6 September 2022 the applicant was personally served with the Final Protection Order at the Kaikohe Police Station.

[4]    On 15 December 2022 the applicant filed a Notice of Interlocutory Application for Special Leave to extend time to appeal:4

(a)the Temporary Protection Order and substituted service order dated 25 May 2022; and

(b)the Final Protection Order.

Legal Principles

[5]    The applicant has a statutory right of appeal to appeal to the High Court.5 The Act does not specify the period within which appeals must be brought. As such, the appeal must be brought within 20 working days after the decision appealed against is given.6 However, the High Court may grant special leave to extend the time prescribed for appealing.7

1      For privacy reasons, the parties’ names as recorded on the intituling of this judgment are not the parties’ real names.

2      Ryan v Ryan FC Hamilton FAM-2022-019-349, 25 May 2022.

3      Family Violence Act 2018, ss 76, 148 and 149.

4      High Court Rules 2016, r 20.4(3).

5      Family Violence Act 2018, s 177.

6      High Court Rules 2016, r 20.4(2)(b).

7      High Court Rules 2016, r 20.4(3).

[6]    In Armond v Reid the Supreme Court set out the approach the Court should take to applications for special leave to appeal. Relevant considerations include:8

(a)the length of the delay;

(b)the reasons for the delay;

(c)the conduct of the parties;

(d)any prejudice or hardship to respondent or to others with a legitimate interest in the outcome;

(e)the significance of the issues raised; and

(f)the merits of the appeal.

Submissions

Delay

[7]    The applicant accepts that he filed his Notice of Appeal 71 working days after being served with the Final Protection Order, giving rise to a delay of 51 working days. Counsel for the respondent correctly points out that the time for bringing an appeal of the Final Protection Order runs from the date on which the order was made (that being 26 August 2022), not the date upon which it was served.9 As such, the applicant filed his Notice of Appeal of the Final Protection Order 58 days late.

[8]    Counsel for the respondent also points out that the applicant did not file his Notice of Appeal until 123 working days after the expiry of the 20 working day period he had to appeal the Temporary Protection Order. The respondent has filed an affidavit of service showing that on 30 May 2022 the applicant was served with the Temporary Protection Order and other relevant documents via his Facebook page, in accordance with Judge Paul’s substituted order. Nevertheless, the applicant deposes that he only

8      Armond v Reid [2017] NZSC 80, [2017] 1 NZLR 801 at [38] – [39].

9      High Court Rules 2016, r 20.5.

became aware of the Family Court proceedings when he received a message on 2 September 2022 from the respondent’s solicitors.

[9]    Be that as it may, the applicant accepts that he was served with the Final Protection Order on 6 September 2022. At that time the applicant still had 13 working days within which to appeal.

[10]   The applicant met with his lawyer on 7 September 2022. The parties’ solicitors corresponded and the applicant received all relevant documents on 21 September 2022.

[11]   The applicant explains that because of the complexities of the file it was not until 17 October 2022 that he sought advice about an appeal. The applicant deposes that there were a number of reasons for his subsequent delay. He is 65 years old and says he has a number of health issues. He needed time to consider whether it was worth it to him to put time and energy into an appeal. The applicant explains that he lives remotely and would need to travel significant distances to meet his lawyer in Whangārei and attend the High Court in Hamilton. He says he needed time to figure out how to pay for an appeal. Finally, he says the case involves a “complicated family dynamic” which an appeal to the High Court would complicate further. For these reasons the applicant says that his decision to appeal was not a decision he took lightly.

Significance of the appeal

[12]   Counsel for the applicant submits that the appeal is significant. Counsel submits that the Protection Order is an infringement on the applicant’s personal liberty, limiting his movement, his freedom of association and his ability to possess firearms. It appears negatively on background checks and vetting exercises.

Prejudice

[13]   Counsel for the applicant submits that the respondent has suffered no prejudice by the delay in filing the Notice of Appeal. On the other hand, the applicant said he is subject to the Final Protection Order without having had the opportunity to tell his side of the story. Counsel submits that any prejudice the respondent might suffer arises not

from the delay but from the need to respond to the appeal itself. In the meantime, counsel for the applicant submits that the respondent “has enjoyed what might be a legally unjustified order for over a year”.

[14]   On the other hand, counsel for the respondent submits that her client has suffered significant prejudice as a result of the delay. Counsel refers me to the relevant statutory purposes and principles of the Act, including the need to stop and prevent family violence;10 to consider and respect the views of victims of family violence;11 and the need for speedy, inexpensive and simple resolution by the Courts consistent with the interests of justice.12 Counsel also notes that the respondent has an expectation of finality in the proceeding which is prejudiced by the applicant’s significant delay in filing an appeal.

Merits of the appeal

[15]   Counsel for the applicant submits that the merits of his appeal are strong. He submits that the statutory test for granting protection orders without notice was not met.13 Counsel submits that Judge Paul erred by failing to find there was insufficient evidence to grant the Temporary Protection Order without notice. In particular, counsel submits that the respondent did not provide an adequate explanation for her delay in applying for the Temporary Protection Order in circumstances where the alleged incident of family violence had occurred three months prior to her application. Counsel submits that without notice orders should only be made in urgent situations, which cannot be the case when the respondent delayed for three months in bringing the application. The applicant says he has been denied an opportunity to be heard and was not permitted to scrutinise the evidence prior to being made subject to such a restrictive order.

Discussion

[16]   I do not consider the applicant has sufficiently explained the significant delay. After he was served with the Final Protection Order on 7 September 2022 he still had

10     Family Violence Act 2018, s 3(1)(b).

11     Section 4(m).

12     Section 4(o).

13     Section 75.

13 working days within which to bring an appeal, but he chose not to. I accept the applicant’s evidence that the case involves a “complicated family dynamic”, and that his decision whether to appeal was not one he took lightly. However, Family Court litigation involving protection orders under the Family Violence Act 2018 routinely involves complicated family dynamics. Family Court decisions to grant or decline protection orders will always impact significantly on the lives of applicants and respondents. That is all the more reason why appeals of those decisions must be brought in a timely fashion.

[17]   I acknowledge that the applicant is now subject to the Final Protection Order in circumstances where he has not in fact “put his side of the story”. However, declining the application for special leave to appeal out of time will not deprive the applicant of a remedy.   It remains open to him to apply to the Family Court under   ss 109 and 110 of the Act to discharge the Final Protection Order. Counsel for the applicant submits this is a more difficult process, and one which requires the applicant to accept that the order should have been made in the first place. However, I am satisfied that there is sufficient flexibility for the Family Court to allow a discharge of an order under s 110 where the respondent denies the allegations of violence and/or denies its extent:14

[39] That said, it is not always clear on what  basis a  Court may have granted a Protection Order, so as to assess if discharge is warranted. For example, if a Temporary Protection Order becomes Final by operation of law, simply because no defence was filed, subsequent discharge applications often claim the original violence alleged didn’t occur and it can’t be presumed to have because someone elects to file no defence at the time. Further, Final Orders which are made by consent, rarely record any findings of the actual qualifying violence or legitimacy of the need for protection when the pleadings show some of the allegations keenly contested, yet ultimately an order is consented to without agreeing to all allegations of violence or necessity. Judgments in contested matters vary themselves. Some are highly specific as to exactly which contested allegations are proven and why the need for protection while some are generalised in their findings.

[18]   I also take into account the applicant’s evidence that he is not actually concerned that he is unable to associate with the respondent or the respondent’s partner, but that he wishes to spend time with other protected persons who are elderly.

14     SPPRS v PLS [2012] NZFC 6555.

I am satisfied there are other means by which the applicant might be able to pursue that, other than through a very late appeal at the High Court.

Result

[19]The application for special leave to bring an appeal out of time is dismissed.

[20]   The respondent is entitled to costs. My preliminary view is that these should be calculated on a 2B basis. If the parties are unable to agree the respondent should file a memorandum of no more than three pages in length within 10 workings day.

[21]   The applicant should file a response (also of no more than three pages in length) within a further 10 working days.

Robinson J