Silver v Strang
[2020] NZHC 1346
•16 June 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2020-409-000010
[2020] NZHC 1346
BETWEEN RICHARD SILVER
Appellant
AND
KIM STRANG
Respondent
Hearing: 2 June 2020 Appearances:
Appellant in person Respondent in person
S J Hembrow (appointed as counsel to assist)
Judgment:
16 June 2020
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 16 June 2020 at 2.30 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: 16 June 2020
[1] On 12 November 2018, Judge Murfitt issued a judgment in the Family Court at Christchurch following a hearing on 31 October 2018.1 The judgment dealt with a number of applications brought by both the appellant and respondent regarding their daughter, Kate, born on 18 June 2009.
[2] On 25 November 2018, Mr Silver sent a notice of appeal against the decision to the email address for the High Court. It was initially received by a Deputy Registrar
1 To protect the identity of the child who is the subject of these proceedings, the names of the parties and any identifying information have been anonymised.
SILVER v STRANG [2020] NZHC 1346 [16 June 2020]
responsible for criminal appeals who advised that “I will process your appeal and be in touch with hearing availabilities”. However, the fact it was not a criminal appeal was quickly identified and it was forwarded to a Deputy Registrar who dealt with civil appeals. She advised by email sent on 4 December 2018 that the notice of appeal had not been accepted for filing because:
(a)the intituling on the notice of appeal was incorrect;
(b)the notice of appeal had not been signed;
(c)he had not paid the filing fee of $540, nor had he applied for a fee waiver.
[3] The Deputy Registrar then advised Mr Silver that his appeal was “now out of time” and suggested that he consult with a solicitor. He was also provided with advice about his right to seek a review of the refusal of a Registrar to accept any document for filing.
[4] Despite that advice, Mr Silver did not seek review of the decision to reject his appeal for filing, and he did not file an application for leave to appeal out of time together with a compliant notice of appeal, until 13 December 2019.
[5] I now have to decide whether to grant Mr Silver special leave to appeal more than 12 months out of time.
Legal principles applying
[6] Mr Silver had 20 working days to file an appeal after the decision issued.2 In this case, the substantive judgment on the applications was given on 12 November 2018, so the right of appeal expired on 11 December 2018.
2 Rule 20.4 of the High Court Rules 2016 which applies to an appeal under s 143 Care of Children Act 2004 provides that an appeal must be brought “within 20 working days after the decision appealed against is given”, unless there is a statutory right of appeal which specifies a different period.
[7] Mr Silver also seeks to appeal the costs contribution judgment which issued on 13 December 2018, and the 20 working day appeal period for that decision expired on 23 January 2019, taking into account the statutory holidays and court closure.
[8] Under r 20.4(3) of the High Court Rules 2016, the High Court can grant special leave permitting an extension of the time for lodging an appeal as long as the enactment that confers the right of appeal does not limit the time prescribed for bringing the appeal. Section 143 Care of Children Act 2004 does not limit the time for bringing an appeal and it is open to this Court to consider granting an extension.
[9] An extension of time is an indulgence. It cannot be expected that an extension will be granted as a matter of course. Rather, the court will assess each application having regard to the following relevant considerations:3
(a)the length of the delay and the reasons for it;
(b)the parties’ conduct;
(c)the extent of the prejudice caused by the delay;
(d)the prospective merits of the appeal; and
(e)whether the appeal raises any issue of public importance.
[10] Before addressing these issues, it is necessary to provide some background to the parties’ disputes over their daughter, and to summarise the decision of Judge Murfitt on the suite of applications then before him and the grounds on which Mr Silver wishes to advance his appeal.
3 My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224; (2009) 19 PRNZ 518.
Background to the appeal
Litigation over Kate
[11] Mr Silver and Ms Strang were not living together when Kate was conceived, but her conception was certainly planned. However, they had different expectations about the extent of involvement Mr Silver would have in Kate’s upbringing.
[12] In the early years of Kate’s life they became involved in Family Court proceedings. These involved:
(a)a guardianship dispute over Ms Strang’s plans to travel to Western Australia with Kate which was determined by Judge Costigan in December 2010;4
(b)a dispute over appropriate parenting orders, with interim parenting orders made in April 2012 placing Kate in the day to day care of her mother, but making provision for regular contact with her father;
(c)a guardianship dispute over Kate’s name which was determined by Judge McMeeken on 30 January 2013.5
[13] On 13 January 2014, the parties reached agreement over care and contact arrangements and the existing parenting orders were discharged. They chose not to have their agreement recorded in court orders at that stage.
[14] On 17 September 2014, leave was refused to Mr Silver to start new proceedings in relation to care arrangements for Kate, with the Judge noting that the new proceedings were substantially the same as the old proceedings.
[15] In March 2016, Mr Silver applied under s 46R Care of Children Act for a determination of the future care arrangements for Kate in light of his intention to return to Christchurch some time in 2017. Judge Harrison issued a minute advising that the
4 K S v A R G FC Christchurch Fam-2010-009-000601, 17 December 2010.
5 A R G v K S [2013] NZFC 737.
court would not be prepared to make an order for future care arrangements on the basis that he might return to Christchurch within a specified period. Shortly afterwards, on 5 August 2016, she issued a judgment on a guardianship dispute over whether Kate could travel to the United Kingdom with her father and, if so, the terms of that travel. The Judge made orders allowing travel for a period of 28 days to coincide with New Zealand school holidays so as to minimise the amount of time Kate was out of school. However, if Mr Silver elected to take Kate to the United Kingdom during the New Zealand Christmas school holiday periods, she allowed the duration of this trip to be 42 days.
[16] Mr Silver appealed the judgment of Judge Harrison to the High Court. Mr Silver’s arguments were considered in detail by Nation J in a judgment dated 10 May 2017 but his appeal was unsuccessful.6 I note that many of the issues sought to be raised in the current appeal were addressed in Nation J’s judgment.
[17]The applications which came before Judge Murfitt in 2018 were as follows:
(a)discharge of the order preventing the removal of Kate (filed 11 September 2018 by Ms Strang);
(b)the appointment of Kate’s brother, as “testamentary guardian” of Kate (filed 5 September 2018 by Mr Silver);
(c)an application for a parenting order as to contact (filed 2 February 2018 by Mr Silver);
(d)an application allowing relocation to Western Australia (filed 12 March 2018 by Ms Strang).
[18]The applications also identified:
(a)a guardianship dispute as to Kate’s schooling; and
6 Silver v Strong [2017] NZHC 942.
(b)a guardianship issue as to Kate’s name.
[19] The hearing was scheduled on 17 September 2018 as a back-up fixture for 31 October 2018. Mr Silver advised the court that this was not suitable as his partner had surgery scheduled for that day. The court was not prepared to reschedule the hearing, noting the proceedings were “long-standing”. The hearing proceeded without Mr Silver in attendance with the Judge noting “the interests of Kate in having this matter resolved is far more important than the reasons advanced by Mr Silver for further delay.”7
The judgment
[20] The introductory paragraph to the judgment provided the following background to Kate’s birth:8
Kate, aged 9, has always lived in her mother’s care. She was conceived and born well after her parents’ relatively brief relationship ended in late 2007. Her mother, then aged 40, wanted a child, and Mr Silver offered to assist in providing the necessary service so that she could conceive.
[21] The Judge went on to summarise the current circumstances, which included that Kate was in her mother’s care, and care and contact agreements were reached in 2014 but were not incorporated in court orders at the parents’ wish. There was, however, an order in place preventing Kate’s removal from New Zealand which was redundant “because both parents wish to be able to travel overseas with her”.9 The order had been made on the application Ms Strang, who was concerned that Mr Silver might wish to travel abroad with Kate when she had been recently diagnosed with type 1 diabetes and her medication needs were still being established. However, Kate was now reported to be coping well with monitoring her blood sugar levels and detecting when she needed to take insulin.
[22] The Judge noted that Kate was a girl with a maturity beyond her years, with a reading age well above average. Mr Higgs, the psychologist who prepared a report for the court under s 133 Care of Children Act, described her as a “voracious reader
7 At [12].
8 At [12].
9 At [3].
and an independent thinker” who cared equally about her parents and did not wish to put one ahead of the other in her affections. He also observed that “Kate has made it clear she does not wish to meet with the Judge hearing the case”.10
[23] Kate indicated to Mr Higgs that she was happy living with her mother at present but would like to see more of her father than she does. She noted that if her father lived in Christchurch and not Nelson, she would like a form of equal shared parenting. While she enjoyed trips to Western Australia to see her mother’s family she did not wish to live there because of the impact that would have on her relationship with her father.
[24] Some of the applications were dispensed with quickly. The Judge discharged the order preventing removal as Kate’s medical concerns were now addressed and both parents wished to be able to take her overseas. He pointed out he had no jurisdiction to appoint a testamentary guardian and dismissed that application. He also dismissed the application in relation to Kate’s name, saying it had been finally resolved by Judge McMeeken’s decision in 2013.
[25] In respect of Ms Strang’s application to relocate to Western Australia, he expressed concern that relocation would “create an impediment to the development of her relationship with her father, which is an important aspect of her life, and one from which she presently gains considerable enjoyment.”11 However, he noted that Mr Silver would need to be aware that “continued nit-picking disputes with Kate’s mother, and overly persistent communications with Kate, or continued engagement of the child in parental issues, might well wear out Kate’s goodwill, and undermine the child’s emotional resilience.”12 That could cause her to “react negatively” and in those circumstances “relocation to Western Australia might in the future become a more desirable option for the child.”13 The Judge concluded that relocation to Australia “at this stage” would not best serve the welfare and interests of Kate.
10 At [7].
11 At [67].
12 At [68].
13 At [68].
[26] In respect of schooling he noted Mr Silver wanted Kate enrolled in a state primary school close to his section in the suburb of Hillview.14 However, because Mr Silver did not live there, and the school did not accept enrolments out of zone, that option was not open for consideration. The Judge made a direction that Kate remain enrolled at her present school.
[27] Finally, in terms of the parenting arrangements, Mr Silver was seeking to have Kate for 56 days in order to travel to the United Kingdom in the northern hemisphere summer, saying his skills as a teacher would mean he could home school her during the time she was out of school. Mr Silver also proposed that Kate visit him in Nelson for two long weekends during each school term.
[28] Ms Strang supported Kate being able to travel each year to the United Kingdom during the northern hemisphere summer, but only if Kate was taken from school for no more than a week each side of the school vacation in July or in October. In other words, she would agree to 28 days absence, which included missing two weeks of school.
[29] The Judge did not support Mr Silver’s proposal to take Kate out of school for more than the two weeks to travel to England, with the Judge concluding the “regular prolonged removal of Kate from school … [would not] serve Kate’s interests overall”.15 He also rejected the idea that Kate spend two weekends with Mr Silver during each school term noting it meant she would either have to fly unaccompanied to Nelson each time or suffer a 14 hour return road trip between Nelson and Christchurch, eight times per year. However, he agreed that such term time contact could occur instead in Christchurch so that the stress of travel was borne by Mr Silver.
[30] At the conclusion of the judgment parenting orders were made which confirmed that Ms Strang would continue to have day to day care of Kate and Mr Silver would have contact with Kate on terms which included:
(a)contact, as specified, each school holiday;
14 The name of the suburb has been anonymised to protect Mr Silver’s identity.
15 At [80]-[81].
(b)contact over a 28 day period encompassing the July school vacation, to travel to England with Kate;
(c)contact on two weekends in each school term in Christchurch; and
(d)contact by Skype, Messenger or other electronic or telephonic means on Sunday evening and Thursday evening at 6 pm.
[31] While Mr Silver had not sought a shared-care arrangement in his application, it had been mooted as something Kate would like if her parents lived in the same city. On that topic, the Judge noted:16
It is unlikely that an equal shared care arrangement will be appropriate for Kate, even if her parents lived in the same city. However, if Mr Silver moved to Christchurch, then a more regular and extensive pattern of contact, including an extended period over each alternate weekend, might be appropriate.
That said, he also noted that it is “unlikely Mr Silver, who is unable to risk living in cold climates, would be willing or able to reside again in this city.”17
[32] Although there was no order as to costs because both parents were self-representing, in a subsequent judgment Judge Murfitt ruled that Mr Silver should pay 50 per cent of the prescribed proportion of the fees of lawyer for the child and the psychologist, being $6,619.85. While he noted Mr Silver had a limited income from a United Kingdom disability pension and from teaching, he had “substantial assets including his home, property in England, and a section in Christchurch”, and could utilise those to pay his share of the prescribed contribution.18
Grounds of appeal
[33] The notice of appeal filed on 13 December 2019 discloses the following grounds of appeal:
16 At [89].
17 At [89].
18 At [10].
(a)the hearing on 31 October 2018 proceeded without Mr Silver being present despite him advising the Court that he could not attend on that date because he would be supporting his current partner who was having a scheduled operation;
(b)the Judge chose not to interview Kate although Judge Walsh had earlier directed that the hearing judge was to interview Kate;
(c)the Judge misrepresented the level of commitment Mr Silver had to moving back to Christchurch and establishing a house on the section he owns on Hillview hill;
(d)the contact plan which the Judge imposed was “practically unworkable” and ignored his suggestions for contact. It removed the 42 day Christmas contact that Judge Harrison had given them and ignored Judge Somerville’s “order” that if Mr Silver was to relocate back to Christchurch then contact with Kate was to be reviewed sympathetically;
(e)there was a “real possibility” of a conflict of interest by the Judge as he is associated with the two lawyers who own adjacent properties to Mr Silver’s Hillview section and who have thwarted Mr Silver’s plans to move a relocatable house on to his section;
(f)the Judge was wrong to say the issue of Kate’s name was res judicata and he has “sanctioned the respondent to use only half Kate’s legal names”;
(g)the Judge wrongly reiterated the statement in a 2013 judgment of Judge McMeeken which suggested he had not been in a relationship with Ms Strang and was “some sort of sperm donor”;
(h)the Judge ignored his suggestions for Kate’s education, including that she repeat year six;
[34] Mr Silver also wishes to appeal the contribution decision as to costs on the grounds it was “punitive and unjustified” as:
(i)he did not request either the s 133 report or lawyer for the child;
(ii)his income in the last year was only $24,000.
[35]In terms of relief, Mr Silver seeks:
(a)a rehearing of the applications he made to the court, at a time when he and his son, Daniel, are able to attend;
(b)that the s 133 report writer and lawyer for the child see him with Kate;
(c)that the court make enquiries as to whether “the people who want to acquire my Hillview property” have a conflict of interest and whether the court’s past records and rulings may have been affected by a conflict of interest.
Should leave to appeal be granted having regard to the relevant considerations?
[36] In light of the background to the appeal, the decision of Judge Murfitt and Mr Silver’s notice of appeal, I turn now to consider factors relevant to the grant of leave.
Extent of delay and the reasons for it
[37] The delay is extensive. It is just over a year between the expiry of the statutory time frame for filing the appeal and when Mr Silver filed a compliant notice of appeal and an application for special leave to extend the time for filing the appeal. That is a significant delay, but whether it points against the grant of leave will turn on other factors, including the reasons for the delay, the prejudice to the parties and the merits of the appeal.
[38] Mr Silver makes a number of points to explain the delay. He says that the initial response received from the High Court on 3 December 2018 was positive and
led him to believe the appeal had been accepted. He said he did not understand some of the reasons for subsequently rejecting the appeal on 4 December 2018. For example, he says he does not know what “intituling” meant. He also says that he did not pay the filing fee because he did not have income at the time, but he did take steps to apply for a fee waiver. He had also told the Court that a signed copy of the appeal would arrive by post.
[39] He then says that he tried to file his appeal three further times and that while he was away in the United Kingdom in mid 2019, the Court advised him not to worry about anything until he returned. For all these reasons, he did not manage to file a compliant notice of appeal and application for leave to appeal until 13 December 2019.
[40] However, having looked at the court file, I do not accept that the delay is reasonably explained. While there was an email on 3 December 2018 which suggested the appeal had been accepted and would be processed, that was corrected the following day. Mr Silver was advised exactly what deficiencies there were with his appeal and why it was not being accepted for filing. One of these grounds was the failure to pay the filing fee, but he was also advised of the option to apply for a fee waiver and he was given the link to the relevant application form on the website. He was also advised of his rights to seek review of the refusal by a Registrar to accept his appeal for filing under r 2.11(1) of the High Court Rules.
[41] Mr Silver responded to this advice by email saying it was a “surprise to see that it has been disqualified” and was not being reviewed on its merits. However, he took no steps to file an application for review. He simply sent a further email on 8 March 2019 where he asked “[h]as the decision not to allow my appeal been reviewed yet please?” The Deputy Registrar responded, reminding him he had not made an application for review and no further action would be taken.
[42] Mr Silver emailed the High Court again on 25 July 2019, asking that his appeals “be put forward for consideration”, and set out a number of reasons why he considered his appeal had merit. Similar emails were also sent by him on 18 August 2019 and on 29 August 2019. The Deputy Registrar’s last response to Mr Silver was “I am sorry but I cannot take this any further – you have been provided
on a number of occasions the reasons for the appeal not being accepted for filing and steps you could have taken.”
[43] On 4 October 2019 Mr Silver again emailed the Court suggesting that the Court had not let him make an application, to which the Registry responded “the court remains ready to receive your appeal on provision of the appeal documentation in correct content, form and payment of the fee.”
[44] It is difficult to understand how the High Court Registry could have been more clear in its instructions to Mr Silver. He was told what was wrong with his notice of appeal and what he needed to do to rectify it. Had those matters been resolved shortly outside the time frame for filing the appeal, it would have been difficult to resist an application for leave to appeal out of time. However, Mr Silver refused to take responsibility for rectifying the situation and ignored the advice of Registry staff. I reject the suggestion that Registry staff told him not to do anything until his return from the United Kingdom. Instead, he advised the Court it was too difficult to file his appeal from abroad and the Registry staff responded, saying they would take no further action until he returned to New Zealand and filed the amended paperwork.
[45] Although Mr Silver is a litigant in person (to whom some leeway would usually be extended by the court), he is an intelligent man and no stranger to the court process. He was well aware of the time frame for filing an appeal. Indeed, this was addressed in the 2017 judgment of Nation J where, in response to a challenge to a decision of Judge McMeeken, he noted:19
Any appeal in respect of Judge McMeeken’s decision of 17 September 2014 had to be brought within 20 working days of Judge McMeeken’s decision. Because the Act did not specify the time within which an appeal had to be brought, Mr Silver could have applied to the High Court for leave extending the time for appealing that decision. The High Court Rules specify that such an application should have been made by interlocutory application on notice to Ms Strang. No such application was made.
[46] Mr Silver was given clear advice as to why his appeal was not accepted. He knew that an application for leave to appeal out of time would need to be made if his
19 Silver v Strong, above n 10, at [10].
appeal was not filed in time. He chose not to take those steps until a year later. His delay is not reasonably explained.
The conduct of the parties
[47] This ground overlaps with the ground just discussed. It also overlaps with my discussion below on the merits of the proposed appeal. Suffice to say Mr Silver’s dilatory conduct in progressing the appeal and his desire to litigate issues which have either been finally determined, or for which there is little, if any, factual basis, does not support his application for leave.
The extent of prejudice caused by the delay
[48] There will, in my view, be prejudice to Ms Strang if leave to appeal was granted. This is not a case where, as in My Noodle Ltd v Queenstown-Lakes District Council, the parties had assumed the appeal was on foot and was progressing to hearing.20 Ms Strang now faces the prospect of further litigation when, for over a year, she could have assumed that tranche of litigation was over. Furthermore, if the appeal had been filed in time, it would have been finally determined some time ago.
[49] However, the real prejudice, in my view, is to their daughter Kate. Mr Hembrow, counsel to assist, was lawyer for the child in the Family Court. In succinct and helpful submissions, he outlined the effect of delay on Kate. He pointed out that s 4(2) of the Care of Children Act 2004 states:
Any person considering the welfare and best interests of a child in his or her particular circumstances–
(a)must take into account–
(i)the principle that decisions affecting the child should be made and implemented within a time frame that is appropriate to the child is sense of time;
[50] Here, he submits that the delays in filing the appeal mean the matter will not be determined until November 2020. Kate was eight years and three months old at the time of filing the proceedings and if leave is granted, she will be 11 years and
20 My Noodle Ltd v Queenstown-Lakes District Council, above n 3.
five months old when the appeal is heard, and even older when a decision issues. The current litigation would have been going on for almost a third of her life before resolution, and her needs and circumstances will be very different at the age of 11 and a half than they were at the age of eight.
[51] I am satisfied that granting leave to appeal would be prejudicial to Kate because it would be contrary to the principle that decisions should be made and implemented within a time frame that is appropriate to the child’s sense of time.
The prospective merits of the appeal
[52] The merits of the proposed appeal are inextricably linked to the grant of leave. Where a real injustice would be perpetuated if leave was not granted, that may outweigh considerations of prejudice to the other parties or lengthy delay. However, an unmeritorious appeal may well be refused leave despite a short and reasonably explained delay.
[53] In the present case, the grounds of appeal relate, in part, to the procedure for hearing in that:
(a)it went ahead without Mr Silver;
(b)the Judge and lawyer for the child allegedly had a conflict of interest; and
(c)the Judge did not interview Kate, nor did the s 133 report writer see Mr Silver and Kate together.
[54] The other grounds of appeal (which, emerged in part, in the hearing of the leave application), relate to the outcome of the hearing. They appear to be that the Judge should have:
(a)ordered a shared care arrangement to apply when Mr Silver returned to Christchurch;
(b)ordered that Kate have a 56 day long trip with him to the United Kingdom during the New Zealand winter;
(c)revisited the issue of Kate’s name and her schooling.
Mr Silver also took exception to the Judge’s description of the circumstances of Kate’s conception.
[55] In terms of the hearing proceeding without Mr Silver, I am satisfied that the Judge was entitled to do this. Mr Silver was advised on 17 September 2018 that the applications were scheduled for a back-up hearing on 31 October 2018. That was confirmed in a conference on 26 September 2018 where Judge Moran advised that the back-up fixture for 31 October was “probably the only time that is available for hearing this year”, and she was anxious to progress the proceedings “in a way that ensures they are determined for Kate in a timely manner”. Mr Silver hung up during that telephone conference, but subsequently filed a memorandum seeking to vacate the hearing set down for 31 October 2018.
[56] Judge Moran, in a minute dated 3 October 2018 confirmed that the proceedings would remain as a back-up hearing for 31 October 2018. It seems there were then difficulties making arrangements for the s 133 report writer to observe Kate in her father’s care. That was discussed in a minute dated 5 October 2018 and, again, it was confirmed that the fixture for 31 October 2018 would proceed.
[57] Mr Hembrow filed a memorandum dated 12 October 2018. It reported Mr Silver’s advice to Mr Hembrow that he would not be attending on 31 October because of his partner’s surgery. As it transpired, Mr Silver did not change his plans and did not attend the hearing on 31 October 2018, although he knew it would proceed.
[58] Rule 55 of the Family Court Rules 2002 sets out the procedure if some or all of the parties do not appear. It provides:
If no party appears, the court may dismiss the application;
(2)If the applicant appears but no other party appears, the applicant may proceed to establish the grounds on which he or she claims to be entitled to the order or declaration sought.
(3)If the applicant does not appear but another party appears and opposes the application, the court may:
(a) adjourn the hearing; or
(b) dismiss the application.
[59] Ms Strang was an applicant and cross-applicant in seeking parenting orders. Judge Murfitt decided not to adjourn the proceedings and to make parenting orders. He set out his reasons for not granting the adjournment at [12]-[16] of his judgment. In short, he considered Mr Silver had a choice as to whether he attended the hearing, but had chosen to prioritise supporting his friend having a medical procedure. He did, however, take into account the affidavit evidence filed by Mr Silver and the report filed by the s 133 report writer. He considered the issues were clear and he was able to determine the applications in Mr Silver’s absence.
[60] I agree with the Judge’s analysis. Mr Silver knew the importance of the hearing. In an email to Mr Hembrow on 9 October 2018 he said “you can force the hearing to proceed on 31st October but you will be putting the cart before the horse and making a mockery of the most important decision of Kate’s life”.
[61] Furthermore, Mr Hembrow had written to Mr Silver on 1 October 2018 telling him:
If you are not there and not ready to go the fixture would proceed (provided the matter in front of us had settled and was not proceeding). Your non-participation would mean that you would be very disadvantaged. Your evidence wouldn’t be able to be tested by cross examination and as such where there were factual differences between you and Ms Strang, the Judge would be entitled to find in favour of Ms Strang’s evidence.
[62] I am satisfied, therefore, that Mr Silver was under no illusion as to the importance of appearing at the hearing and he made a deliberate choice not to do so in order to support his partner.
[63] The Judge clearly took into account all evidence filed by Mr Silver as well as the positive things which the s 133 report writer had to say about Mr Silver and his
relationship with Kate. Given Mr Silver’s deliberate choice not to attend, I do not consider it was contrary to the interests of justice for the hearing to proceed as it did.
[64] A related procedural complaint raised by Mr Silver was that the s 133 report writer did not see him with Kate. However, it is evident from emails between Mr Hembrow and Mr Silver that Mr Silver was not entirely co-operative with facilitating this to occur in the time frames involved. That said, the report writer was still able to comment positively on the relationship between Kate and Mr Silver, so it is not clear how this disadvantaged Mr Silver and the outcome of the proceedings.
[65] Similarly, the decision by the Judge not to interview Kate was as a clear response to Kate saying she did not wish to be interviewed by the Judge. The Judge set out his reasons for concluding he did not need to interview Kate to understand her viewpoint. Again, given that Kate had spoken openly and positively to lawyer for the child and Mr Higgs, the psychologist, about her relationship with her father, I see no detriment to Mr Silver in the Judge’s decision not to meet with Kate personally.
[66] Finally, there is the allegation of conflict of interest. Mr Silver makes allegations of bias and conflict of interest readily. Previous lawyer for the child relinquished her appointment after Mr Silver had criticised her in emails for being a “one sided” lawyer for child and preparing a “horribly skewed report”.
[67] Mr Hembrow was appointed in her place and soon he was alleged to have personal conflicts with Mr Silver, with Mr Silver saying that Mr Hembrow knew two people who had a vested interest in opposing his application to the Family Court. That crystallised into an allegation that Mr Hembrow knew two Christchurch lawyers who owned properties on either side of Mr Silver’s Hillview section and who were preventing him from developing it. He also said that Mr Hembrow also knew “the identity of the person I was dating when Kate was a baby and before I met my partner”. However, he refused to give the name of that person. Shortly before this hearing, Mr Silver sent an email to the Court asking to have Mr Hembrow removed as “lawyer for the child”, again saying that Mr Hembrow had a conflict of interest.
[68] Mr Hembrow has repeatedly denied any allegations of conflict of interest. He has filed a memorandum in this Court in which he confirmed that the lawyers who owned land adjacent to Mr Silver’s section were known to him as colleagues and acquaintances, but he had no knowledge of the issue between them and Mr Silver. He also had no idea of who was being referred to when Mr Silver says Mr Hembrow knows a former partner of his. I accept Mr Hembrow’s response to these allegations.
[69] The allegations of conflict of interest alleged against the Judge are in a similar category to those alleged against Mr Hembrow. Mr Silver asserts that there is a “real possibility” of a conflict of interest because the Judge is friends with the lawyers who own property adjacent to his Hillview section, and who have obstructed his ability to put a relocatable house on that section. When pressed further for the evidence he relied on to make this allegation he says he has been told by other people that one of the lawyers has been a friend with the Judge for 50 years because they went to university together. He added that the fact the judgment is more aligned to Ms Strang’s interests than his, and did not make provision for shared care in the event he returned to Christchurch, was indicative of the fact the Judge was serving the property developers’ interests rather than Mr Silver’s. When pressed about the degree of connection which would create a conflict of interest, Mr Silver confirmed that if any lawyer in Christchurch was appointed as lawyer for the child, then they would have a conflict of interest because of the possibility they knew the lawyers who were obstructing his rebuilding plans.
[70] The threshold for establishing a conflict of interest is well known. A Judge should be disqualified for having a conflict of interest (or, more aptly in the present circumstances, apparent bias), “if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.21
21 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72; [2010] 1 NZLR 35 at [3].
[71] To determine whether that threshold is reached, the Supreme Court in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd said that two steps are required:22
(a)First, the identification of what it is said might lead a Judge to decide a case other than on its legal and factual merits; and
(b)Secondly, there must be “an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.
[72] The judgment also noted that the “fair minded lay observer is presumed to be intelligent and to view matters objectively. He or she is neither unduly sensitive or suspicious nor complacent about what may influence the judge’s decision.”23
[73] In the present case, the identification of what is said might lead the Judge to have decided the case on other than its legal and factual merits is no more than an allegation that the Judge and the older of the two lawyers who own land adjacent to Mr Silver’s section went to university together and he is friendly with both lawyers.
[74] While the evidential basis for a friendship between the Judge and the lawyers who own adjacent property is untested, I have assumed for the sake of this hearing, that the Judge did attend university with one of the two lawyers who own property in Hillview and is on friendly terms with both of them. That is insufficient in my view to reach the threshold for establishing the requisite risk of apparent bias or a conflict of interest. As was said in Saxmere, when discussing the relationship between counsel for one party and one of the Court of Appeal Judges:24
Although they are close friends of long-standing, the history of their roles as opposing counsel would lead an objective observer to conclude that Mr Galbraith would not expect any favour, which would in any event have been contrary to the Judge’s oath. Nor would there be a perception that the Judge could believe that there might be any such expectation. It is realistically accepted by the appellants that the existence of a friendship such as the two men enjoyed, common among counsel and Judges both in New Zealand and in other jurisdictions, is not alone any cause for recusal. Case law confirms that such relationships between counsel and members of the Bench engendering mutual trust and confidence, are positively regarded.
22 At [4].
23 At [5].
24 At [23].
[75] Nothing Mr Silver has raised suggests the alleged relationship with the Judge and the lawyers goes any further. This is not a case, as in Saxmere, where the Judge is suggested to have a business relationship with counsel or the parties such as would raise the real possibility of him determining the decision otherwise than on the evidence before him. There is no suggestion that the Judge has any interest in the property development being pursued by the two lawyers, nor is there any suggestion the Judge would gain a personal advantage from finding against Mr Silver in his Family Court dispute.
[76] In those circumstances, neither of the two steps which are required to raise the question of a real possibility of conflict or bias are met in this case. This is not a ground for allowing the appeal or referring the matter back for rehearing.
[77] Thus, in my view, none of the procedural grounds on which he seeks to appeal the decision have any merit and I turn now to discuss the substantive concerns he has with the decision.
[78] In respect of the duration of time that Kate could spend in the United Kingdom with Mr Silver, it was incorrect to say that the Judge “removed the 42 day Christmas contact”. It is clear that was not something the parties had sought when Judge Harrison made the order and, in any event, that order was superseded by the parties’ own agreement as to parenting orders recorded by Judge Sommerville in 2014. Judge Harrison was only prepared to allow the 42 days over Christmas because it coincided with the school holidays and did not affect Kate’s schooling.
[79] The proposal before Judge Murfitt was different. It was to take a 56 day break in the northern hemisphere summer, which would take Kate out of school for six weeks during the most productive parts of the New Zealand school year. The Judge’s decision on this was soundly reasoned and, although he had some misgivings about allowing Kate to be removed from school, he allowed that to occur because Ms Strang supported the idea of Kate having extended time with her father in the United Kingdom summer. It is difficult to see that a more favourable outcome would be forthcoming on appeal and I consider that the appeal of this contact order has little merit.
[80] The second objection to the orders which were made was that they did not provide for shared care of Kate in the event of his return to Christchurch. However, as Ms Strang pointed out, Mr Silver’s application was not for shared care, it was only to amend the contact arrangements he had with Kate. Furthermore, there was nothing in Mr Silver’s evidence to suggest a shift to Christchurch was imminent. In his affidavit filed on 24 October 2018, just before the hearing, he said he was proposing to purchase some land near Puponga, which is a tiny settlement at the foot of Farewell Spit in the South Island. He said “it is a fantastic environment to visit with lots of activities at hand including horse riding, kayaking and swimming which would be good for Kate.” There was no evidence to suggest a definitive move to Christchurch in the immediate future, and it was dependent, in any event, on being able to put a house on his Hillview section. On his own evidence, there was no time frame for that to occur as he said that the dispute with his neighbours had prevented him from rebuilding or reoccupying it since 2012, and he was still in a court battle with them.
[81] While it seems Mr Silver discussed the possibility of moving to Christchurch with Mr Higgs, and Mr Higgs had considered that scenario, the Judge had to make his decision based on circumstances as they were, not based on a possibility indirectly communicated to the Court and with no clear time frame for implementation. The circumstances are no different from when Judge Harrison refused to consider a shared care arrangement in 2016 but when there was no certainty about a time frame for Mr Silver relocating to Christchurch. I consider there are no realistic prospects of advancing an appeal on this issue in those circumstances.
[82] In respect of the dispute over names, the Judge was correct to say this was finally determined by Judge McMeeken’s decision in 2013 and the evidence before him showed that Ms Strang had complied with that determination. There is no proper basis to appeal this aspect of the decision.
[83] Another aspect of the decision which Mr Silver challenged was the explanation of Kate’s conception at the start of the judgment. Mr Silver says that Judge Murfitt “relied on a 2013 judgment of Judge McMeeken that was made under the impression that the respondent and I had not been in a relationship and inferred that I was a lesser
parent, some sort of sperm donor.” He said that this had been corrected by “a series of amending affidavits including one from my former lawyer Mr Jeremy Daley, an affidavit Ms Strang made in 2007 … about having a child together and in my son’s affidavit.” Mr Silver believes that Judge Murfitt’s decision perpetuates a misrepresentation of his role and it would be damaging to Kate for the decision to go uncorrected.
[84] I note the same issue was rehearsed at length in the 2017 judgment of Nation J, where Mr Silver had sought Judge Harrison correct the description of how Kate was conceived in Judge McMeeken’s 2013 judgment. In her judgment Judge McMeeken had said “this was a child whose birth was planned. The mother wanted a child and was not in a relationship and it seems after some discussion it was agreed that the mother would have a child fathered by the father.”25
[85] Mr Silver’s explanation of the relationship as recorded in Nation J’s decision was:
In 2007 [Ms Strang] and I were in a relationship for most of the year. We did not live together. We stayed at each other’s houses in Hillview and Lyttelton. We took holidays together … [w]e formulated a plan for having a child together … [In] 2008 we split up but remained close spending much of our free time together. We both dated other people but unsuccessfully.
He then said they were successful in Ms Strang conceiving a child as she had wanted to when they were in a committed relationship.
Judge Harrison had said there was no jurisdiction to “correct” the Court record.26
[86]When the issue was raised on appeal Nation J said the following:
[28] The statement which Judge McMeeken made, which Mr Silver objected to, was a brief observation based on the information which was before her, including material provided by Mr Silver. It was not in any way a judicial determination as to a matter which had been in dispute. Her observation was not material to the actual decisions which were recorded in her minute. It will not be material to decisions which any court may have to make in the future.
…
25 A R G v K S, above n 5, at [5].
26 At [26].
[30] On reading the Family Court file, my assessment is that Mr Silver has allowed a misplaced grievance about a minor matter to assume an unwarranted importance, which has become mixed up with his grievance about what has happened in the Family Court and the way he considers others have made it difficult for him to have the relationship he wants with his daughter. What should have been of little significance must have added to the emotional impact the disputes in the Family Court have had on him. His sense of grievance about this must have caused him to incur additional legal expense in obtaining the affidavit from his lawyer. His dwelling on this must also have been frustrating to Ms Strang, contributing to the manner which, on occasions, she has reacted negatively to Mr Silver. All of this is part of what has made it more difficult for these parents to work together in doing what is best for their daughter.
[87] In my view, exactly the same comments can be made about Mr Silver’s criticism of Judge Murfitt’s explanation of Kate’s conception. I do not consider, reading the judgment as a whole, that the Judge has suggested Mr Silver was some sort of “sperm donor” and therefore a lesser parent. To the contrary, he makes it clear that this was a planned conception and Mr Silver is fully acknowledged as a parent who Kate loves and wants to spend time with. Mr Silver has failed to take heed of Nation J’s advice, but is instead seeking to pursue an issue which is not amenable to appeal for the reasons Nation J gave. Again, this issue does not warrant leave to appeal being granted.
[88] Finally, it seems that Mr Silver has concerns about Kate’s schooling. He says she has been advanced a year academically and this was to her disadvantage. He suggests that she repeat a year at intermediate. However, the issue he raised in the hearing before Judge Murfitt were over which school she should attend. That issue has been superseded, with Ms Strang advising that Kate has moved, with the applicant’s agreement, to Christchurch South Intermediate. The fact there are now different concerns about schooling demonstrates the inutility of allowing an appeal to proceed three years after the applications were made. The issue of whether she now repeats a year needs to be considered in consultation with her current school and in light of her current progress. The issues which were raised at the hearing regarding schooling are now moot. There is no point in allowing an appeal on this basis.
[89] It will be clear from the above discussion that neither the procedural grounds nor the concerns with the substantive decision have any real merit. This is a strong reason for declining leave. Granting leave to appeal would simply trap the parties in
yet another round of litigation. It would involve Kate in yet another period of disruption and uncertainty while new reports are prepared to update the court. That is clearly not in her best interests.
Is there an issue of public importance?
[90] There was no suggestion the issues on appeal raised questions which had any significance beyond the private dispute between the parties to the litigation, and this, too, points against leave being granted.
Outcome
[91] I am satisfied, by a significant margin, that leave should not be granted, and the application for special leave to appeal the Family Court’s decision of 12 November 2018 is declined.
Leave to appeal the costs’ contribution decision
[92] The application for leave to appeal also covers the costs contribution decision. There is, of course, no prejudice to Ms Strang or Kate in this appeal proceeding as Mr Silver does not seek to overturn orders which affect them. However, again, the delay in filing the appeal in relation to the costs contribution order is unexplained and the appeal is not particularly strong. The fact Mr Silver did not request appointment of lawyer for the child or the s 133 report writer does not affect his obligation to contribute to their costs and, in any event, he saw them as having an important role in endorsing his evidence as to the strength of the relationship he had with Kate.
[93] In terms of the quantum of costs ordered, Judge Murfitt had regard to the significant asset base that Mr Silver had and decided he could afford to meet the usual level of contribution to the costs of the s 133 report writer and lawyer for the child. There is no obvious reason to disturb this decision. It was an exercise of the Judge’s discretion which was open to him and Mr Silver can point to no obvious error in the Judge’s reasoning. Rather, he would simply like to see the contribution reduced, so he does not have to use his capital to pay for it.
Outcome
[94] In all the circumstances, I do not consider the appeal is sufficiently meritorious to warrant granting leave after an unexplained delay of a year in filing the appeal and leave is declined. The application for leave to appeal the costs contribution decision is also declined.
Consequential directions
[95] As a consequence of leave being declined, the hearing scheduled for 23 November 2020 is vacated.
[96]As the parties were not legally represented there will be no order as to costs.
[97] Mr Hembrow was appointed as counsel to assist. His reasonable costs are to be met from public funds pursuant to s 178 of the Senior Courts Act 2016.
Solicitors:
S J Hembrow, Barrister, Christchurch Copy to:
Mr Silver, Appellant Ms Strang, Respondent
0
3
1