SFB v JEBH - [2015] NZHC 2897

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS
11B TO 11D OF THE FAMILY COURTS ACT 1980, FOR FURTHER INFORMATION, PLEASE SEE ION/RESTRICTIONS-ON-PUBLICATIONS

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-17 [2015] NZHC 2897

BETWEEN
SFB

Appellant

AND

JEBH Respondent

On the papers

Appearances:

P Stevenson for Appellant
C Muller for Respondent

Judgment:

19 November 2015

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 19 November 2015 at
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

SFB v JEBH [2015] NZHC 2897 [19 November 2015]

[1] There is a shared custody arrangement in place between the applicant father and the respondent mother which means that their child, now aged just over five years and two months, spends more or less equal time with each parent during the week. The parents live about 25kms apart and each sought a direction from the Family Court at Waitakere, under s 46R of the Care of Children Act 2004 (“the Act”), that the child should attend the primary school closest to their home.

[2] On 3 July 2015, Judge JH Walker determined that the child should attend a particular primary school, near to her mother’s home. The father, representing himself, sought to appeal that decision to this Court but overlooked the need to apply for leave to do so.1 On 25 August 2015, Katz J made a timetabling order, pursuant to which an application for leave to appeal has been filed and served – the application, incorporating an application extending the time for making the leave application, and
submissions have been filed and exchanged.

[3] For the respondent, Ms Muller acknowledges realistically that a proper case for leave to appeal out of time has been made out, but her instructions have been to oppose the grant of leave to appeal, because there is no merit in the appeal.

Application to file the leave application out of time

[4] I am satisfied that the errors in the appeal procedure initially adopted occurred because the father, who had been represented by counsel in the Family Court, was representing himself and was genuinely unaware of the requirement for leave. As soon as his error was pointed out, when the matter was called before Katz J on 25 August 2015, the father engaged counsel and rectified the position by making the appropriate applications on 18 September 2015. The delay is unfortunate but it does not count against the granting the application. The parents agree that the child, who is the person most directly affected, deserves to have this matter resolved promptly one way or the other.

[5] It would be wrong in principle, in my view, for an application and appeal of this kind to be rejected on a narrow technical point such as the failure of a self-

1 Care of Children Act 2004, s 143(2).

represented litigant to comply with the rules of Court. Such an outcome would not be consistent with the requirement that, in decisions relating…

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 SFB v JEBH

Details

AGLC: SFB v JEBH [2015] NZHC 2897
Case: [2015] NZHC 2897
Decision Date: 19 November 2015

CaseChat Overview and Summary

The case of SFB v JEBH involved a shared custody arrangement between the father and the mother of a child, with each parent seeking a direction that the child attend the primary school closest to their home. The Family Court at Waitakere ruled in favor of the mother, determining that the child should attend a particular primary school near to her home. The father, initially unrepresented, sought to appeal this decision but failed to apply for leave to do so. He later sought leave to file the appeal out of time and to appeal the decision itself. The legal issues before the court were whether the father was entitled to leave to file the appeal out of time, and if the appeal itself had sufficient merit to warrant leave. The court found that the father's unawareness of the requirement for leave, due to representing himself, did not justify rejecting his application. The court granted leave to file out of time, considering the welfare and best interests of the child as paramount. Regarding the appeal itself, the court determined that the decision involved an important matter affecting the child, the resolution of which was significant for the child's daily life. The court noted that neither parent's option for the child's primary schooling was poor, and both presented tenable but competing choices. The court granted leave to appeal, finding the issue to be important for the child and her parents, and not lacking in arguable merit. The appeal was scheduled for a one-day hearing on 11 February 2016, with directions for the preparation of the case and the exchange of evidence. Costs on the application for leave to appeal were reserved.

Orders