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 to the parenting of children, the first and paramount consideration is the welfare and best interests of the child.2

[6]      Accordingly, I grant leave to make the application out of time. [7]     I turn to the application for leave to appeal itself.

The application for leave to appeal

[8]      The principles for a grant of leave to appeal a decision under s 46R of the Act are at the heart of the matter to be addressed in this judgment.  I summarise them:

(a)      In allowing appeals of decisions under s 46R of the Act to proceed only with the leave of the Court, Parliament must have intended that some, but not all, decisions under the section that resolve disputes between  guardians  should  be  subject  to  appellate  review.3    By imposing the leave requirement, Parliament understood that there was a need for finality and that not all challenges would warrant granting leave.4

(b)However, because there is no further right of appeal against a decision under s 46R decision, beyond an appeal in this Court,5 the Court will generally be more willing to grant leave.6

(c)      Where the decision reached by the Family Court has long term implications for the welfare of a child, leave will be more readily

granted.7

2      Section 4(1).

3      PJKW v DAR [2006] NZFLR 946 (HC) at [31].

4      BFW v MPG [2012] NZHC 1188 at [22]; PJKW v DAR, above n 3, at [31].

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

6      BFW v MPG, above n 4, at [21].

7 At [23].

(d)A decision whether to grant leave must be based on the first and paramount consideration of the welfare and best interests of the child.8

In general, bearing that consideration in mind, the Court will need to be satisfied that the issue is sufficiently important to be subject to an appeal notwithstanding: (i) the nature of the decision; (ii) the need for stability to be brought to the life of the child and (iii) the inevitable cost and delay inherent in appellate review.9

(e)      Leave  will  more  readily  be  granted  where  there  is  a  discernible serious issue to be determined.10    Accordingly, disputes that involve “important matters affecting the child”11  are more likely to justify granting leave.12    Where and how the child is to be educated is one such matter.13

(f)      If the party seeking leave identifies a seriously arguable material error of law or fact, then it is likely that leave will be granted.14

[9]      The grounds of appeal proposed by the applicant are that the Family Court

Judge:

(a)       relied on misleading statements of fact by the lawyer for the child;

(b)      failed to give the evidence (including expert evidence) in favour of the

appellant’s case due weight;

(c)       took  into  account  an  irrelevant  matter,  being  the  potential  for

inconvenience regarding the child’s younger half-sibling;

(d)gave the appellant the misleading impression that he was not obliged to comply with Court orders;

8      Care of Children Act 2004, s 4(1).

9      PJKW v DAR, above n 3, at [40] and [45].

10     BFW v MPG, above n 4, at [23].

11     “Important matters affecting the child” is defined in Care of Children Act 2004, s 16(2).

12     PJKW v DAR, above n 3, at [43].

13     Care of Children Act 2004, s 16(2)(d).

14     PJKW v DAR, above n 3, at [44].

(e)       relied upon perjured evidence given by the respondent in the Family

Court proceeding; and

(f)       made a decision which did not have due regard to the best interests and welfare of the child.

[10]     The mother’s response to the proposed grounds is that, based on the matters available to the Judge at the hearing (which included a balanced, if incomplete, report from a psychologist and corrections to the mis-statements by the lawyer for the child), the Family Court Judge was correct in her assessment of which school the child was to attend.

Discussion

[11]     It is clear from the Family Court’s decision that Judge Walker was faced with deciding between tenable but competing options presented by caring parents for the primary schooling of their child.  The resolution of the dispute required the Judge to determine an important matter affecting the child, the decision of which is significant for the child’s daily life during her years at primary school.  The Judge was required to assess the respective merits of the options presented against the best interests of the child.    Neither of the options  represented  a poor choice;  each  had  its  own advantages and disadvantages in terms of the child’s welfare and interests.

[12]     Given my decision that the appeal should be heard, I do not think it would be helpful or appropriate to discuss the merits of the Judge’s decision, except to say that it appears that the Judge was impressed by the genuine motivation of both parents to act in the child’s best interests.  Judge Walker observed that in most respects, in their day-to-day parenting, the parents were managing a shared custody arrangement in good faith, co-operatively and in a way which benefited the child.  It seems that the issue of the location of the child’s primary school is about the only matter on which the parents are unable to agree.

[13]     The assessment of what is in the best interests of the child in the present case involves an evaluative assessment.  It is not a discretionary decision.15    That requires this Court, on appeal, to form its own view on the merits while giving due weight to the views of the specialist Family Court Judge.   If this Court reaches a different conclusion to that of Judge Walker, it will intervene and allow the appeal.16

[14]     In view of the nature and importance of the dispute, I consider it appropriate for the father to have an opportunity to argue this appeal. That is not because I consider his case to have particular merit, but simply because the issue is important to the child and her parents and it cannot be said that the father’s case is so lacking in merit as to be inarguable.

[15]     Accordingly, I grant leave to appeal.

Consequential matters

[16]     I indicated my views to counsel in the course of the hearing.  I was able to do so because of the helpful written submissions of counsel which I had read in advance and the acknowledgement by experienced counsel of the principles to be applied.

[17]     As a result, the parties were able to agree on a hearing date for the appeal and a timetable for interlocutory steps, on the basis that any application to adduce further evidence would be heard at the same time as the substantive appeal.

[18]     It is important that appeals of this kind should be heard promptly.  The parties acknowledge, however, that it is better that their cases should be properly prepared for hearing than set down in haste.  Delaying the hearing until February next year creates no material issue because much of the period to the hearing date will fall during the school holidays.

[19]     In view of the nature of the appeal, and notwithstanding the possibility that the Court may admit evidence not before the Family Court, I do not consider it

necessary for a lawyer to be appointed to represent the child.

15     K v B [2010] NZSC 112, [2011] 2 NZLR 1 at [32].

16     Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

Orders

[20]     The appeal is set down for a one-day hearing on 11 February 2016.

[21]     Any application by the father for leave to adduce further evidence on the appeal, together with the proposed evidence in affidavit form, shall be filed and served by 5pm on Friday, 11 December 2015.

[22]     The mother shall file and serve a notice of opposition to any such application, together  with  any  affidavit  or  affidavits  in  response,  by  5pm  on  Friday,

15 January 2016.

[23]     Any application for leave to adduce further evidence shall be heard with the substantive appeal unless a Judge directs otherwise.

[24]     The standard directions for the hearing of civil appeals in this Court shall apply.17    Counsel for the father shall ensure that a transcript of the hearing in the Family Court is available to the Judge hearing the appeal.

[25]     No later than 1pm on Thursday, 4 February 2016 the parties shall file and serve a joint memorandum or separate memoranda addressing any pre-hearing issues which they consider should be dealt with prior to the hearing date.

[26]     Costs on the application for leave to appeal are reserved.

……………………………..

Toogood J

17     High Court Rules, Schedule 6.