Smith v Chief Executive of Oranga Tamariki - Ministry for Children
[2024] NZHC 3205
•31 October 2024
NOTE: PURSUANT TO S 437A OF THE ORANGA TAMARIKI ACT 1989, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
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IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CIV-2024-441-000019
[2024] NZHC 3205
UNDER the Oranga Tamariki Act 1989 BETWEEN
S SMITH
Applicant
AND
CHIEF EXECUTIVE OF ORANGA TAMARIKI—MINISTRY FOR CHILDREN
Respondent
Hearing: 12 July 2024 Appearances:
Applicant self-represented
M Bryant and E Harris for the Respondent
K Monk as Lawyer for the Children (by VMR)
L MacLennan for interested party - mother (by VMR)Judgment:
31 October 2024
JUDGMENT OF WALKER J
This judgment was delivered by me on 31 October 2024 at 4 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
[SMITH] v ORANGA TAMARIKI [2024] NZHC 3205 [31 October 2024]
[1] Mr Smith and his former partner Ms Ford have two young children.1 Following their separation in 2021, the parents have been engaged in a bitter dispute in relation to care of the children. The proceedings before the Family Court have a complex and convoluted history.
[2] This judgment deals with an application by Mr Smith for leave to appeal the decision of Judge P J Callinicos in the Family Court at Napier delivered on 19 December 2023, in which the Judge made a support order (the Support Order) under s 91 of the Oranga Tamariki Act 1989 (the Act).2 Leave is required because Mr Smith seeks to appeal that decision out of time.3
[3] The Chief Executive of Oranga Tamariki — Ministry for Children (the Chief Executive) opposes leave and supports the Family Court judgment. The appointed lawyer for the children also supports that judgment.4
Preliminary matters
[4] The complicated procedural history bedevilling matters before the Family Court also impacts the application before this Court.
[5] Mr Smith’s notice of application for leave to appeal refers to two decisions of the Family Court.5 The first is the making of the Support Order. The second concerns a much earlier interim parenting order made without notice under the Care of Children Act 2004 (COCA) on 16 November 2021 and varied by consent of both parties on 16 December 2021 (the Interim Parenting Order).6 That varied Interim Parenting Order made by consent was operative at the date of this hearing.
1 I have adopted fictitious names for all parties to protect their privacy.
2 Chief Executive of Oranga Tamariki — Ministry for Children v [Smith] [2023] NZFC 14294 [judgment under appeal].
3 The application for leave in this Court was outside the 20 working day limit prescribed in the High Court Rules 2016, r 20.4(2)(b).
4 A complaint by Mr Smith against the lawyer for the children was the subject of a detailed minute by Judge Callinicos on 20 May 2024. The Judge rejected the complaint and continued the appointment of the lawyer for the children. See Chief Executive of Oranga Tamariki v [Smith] FC Napier FAM-2021-041-000196, 20 May 2024.
5 Notice of application for leave to appeal filed 14 February 2024.
6 Joint memorandum of counsel (for Mr Smith and Ms Ford) dated 13 December 2021.
[6] Mr Smith considers that the Interim Parenting Order is so closely interwoven with the Support Order that appeals of both should be permitted and heard together in the best interests of the children.7 However, any challenge to the Interim Parenting Order faces both substantive and procedural obstacles, not least being the more than two year delay between its making and the filing of this application for leave to appeal. More materially, an appeal against an interim parenting order requires leave of the Family Court.
[7] Judge Callinicos, who has had the carriage of the Family Court proceedings, identified early on a potential jurisdictional conundrum in respect of such an application seeking leave to appeal an interim parenting order but which required an extension of time to make that application. That conundrum was resolved by McHerron J following a directions conference between the parties. In his minute dated 17 April 2024 McHerron J recorded:8
[4] According to counsel for the Chief Executive, Judge Callinicos considered that unless Mr [Smith] filed an application for extension of time to appeal to the High Court, the Family Court would not have jurisdiction to consider granting leave to appeal. With respect, I take a different view. Rule 20.3 of the High Court Rules 2016 provides that it is the decision maker, (in this case the Family Court), to which the application for leave in respect of the interim parenting order must be directed. Moreover, r 20.3(5) provides for determination as to out of time appeals are to be made by the decision maker (in this case the Family Court). (footnotes omitted)
[8] McHerron J directed allocation of a hearing of the application for leave to appeal the Support Order only. All parties accepted that position. Consequently, the hearing before this Court was only in respect of leave to appeal the Support Order and this judgment accordingly deals only with that issue.
[9] After the hearing but before issue of this judgment, Judge Callinicos determined Mr Smith’s application for leave to appeal the Interim Parenting Order.9 Noting that only Ms Ford had filed a notice of opposition to the leave application, and
7 Mr Smith also filed a separate (without notice) application with the Family Court for leave to appeal the Interim Parenting Order on 20 March 2024. By minute of 10 April 2024 Judge Callinicos determined that the application should proceed on notice so that the affected parties had opportunity to be heard on the issue.
8 [Smith] v Chief Executive of Oranga Tamariki — Ministry for Children, HC Napier CIV-2024-441-019, 17 April 2024.
9 [Smith] v [Ford] [2024] NZFC 9867.
that neither Oranga Tamariki — Ministry for Children (Oranga Tamariki) nor the lawyer for the children had advised a position on the issue, he declined to grant leave.
He prefaced his substantive decision as follows:10
[29] I preface my determinations by repeating that my decision may be subject to jurisdictional deficits if it is subsequently determined by the High Court that Mr [Smith] must first seek and obtain an extension of time in which he can file his application for leave to appeal. As I have previously noted, my understanding is that such aspect is primarily a function for the High Court. If such leave is required and, if it was not given, then there would be no need for me to undertake the following assessment of leave to appeal.
[10] For the reasons set out in that paragraph, he did not explicitly determine the preliminary point as to whether leave was required to advance that application out of time. This is notwithstanding the minute resolving the matter issued by McHerron J which I presume did not reach the Family Court.11 The result is a procedurally curious situation in which the application for leave to appeal the Interim Parenting Order has been substantively dealt with by the Family Court without first determining leave to make the application out of time. However, given the substantive application was declined, that is of no practical moment.
[11] The reasons why the Family Court declined leave to appeal may be distilled as:
(a)The operative Interim Parenting Order is the order which was varied by express consent of both parties on 16 December 2021.12
(b)The Interim Parenting Order is “not remotely indicative of what the ultimate outcome of proceedings might be” but only regulates the initial care and contact arrangements, with Mr Smith’s consent.13
10 [Smith] v [Ford], above n 9.
11 It is very likely that the minute of McHerron J was not forwarded to the Family Court and consequently Judge Callinicos was unaware of it when he issued his judgment on the papers without a hearing.
12 [Smith] v [Ford], above n 9, at [10].
13 At [37].
(c)It is the subsequent s 68 application for a care and protection order under the Act by the Chief Executive which assumes primary importance.14
(d)As the orders are of limited import to the substantive issues, the delay occasioned by the leave and appeal process is a significant factor.15
(e)Mr Smith has not established that there is some question of law or fact which is capable of serious argument and is of sufficient importance that it outweighs the cost and delay of permitting an appeal.16
(f)Circumstances have developed considerably since the Interim Parenting Order was made.17
(g)Allowing an appeal will not serve the welfare and interests of the children given its pursuit will further delay already protracted proceedings.18
Background
[12] I take the following summary from the most recent judgment of Judge Callinicos in which he summarised the background and steps taken in the Family Court.19 This is a condensed version only and does not comprehensively set out all the matters before the Family Court.
[13] The initial proceedings commenced under COCA on 16 November 2021 when Ms Ford made a without notice application for both an interim parenting order under that Act and other related orders.20 The Family Court made an Interim Parenting Order
14 At [39].
15 At [41].
16 At [48].
17 At [48].
18 At [50].
19 Chief Executive of Oranga Tamariki — Ministry for Children v [Smith], above n 2.
20 The following day Mr Smith also made a without notice application for an interim parenting order under COCA.
granting Ms Ford the day-to-day care of the two children, with supervised contact to Mr Smith.
[14] Following a whānau hui on 7 December 2021, the parties agreed matters relating to (Mr Smith’s) contact with the children and the details of programmes to be undertaken by both parents to address various issues.21 The Family Court endorsed the agreements between the parties by varying the Interim Parenting Order on 16 December 2021.
[15] Various related hearings took place in early 2022. The Family Court indicated the need for involvement by Oranga Tamariki. The then lawyer for the children also raised care and protection concerns. By 27 September 2022, Oranga Tamariki had convened the first family group conference (FGC). Following this initial conference a number of further FGCs were held.
[16] In his helpful traverse of the complicated history, Judge Callinicos noted that as a result of the FGCs the parties had agreed upon interim care arrangements pending final findings of the Family Court. The agreed arrangements between the parents altered in part the existing, and only, Interim Parenting Order of 16 December 2021 and had been managed on an informal basis by agreement between the parties,
Oranga Tamariki and lawyer for the children.22
[17] In August 2023, after further escalation in the nature, intensity and frequency of concerns in relation to the day-to-day care of the children, Oranga Tamariki filed an application for a care and protection order under s 68 of the Act with a specific recommendation for a s 91 support order.
[18] Mr Smith supported the making of a care and protection order but argued that a custody order was more appropriate than a support order. Initially, both lawyer for the children and counsel assisting the Court also favoured a custody order however the Family Court deferred determination so that Oranga Tamariki could consider further available information.
21 Joint memorandum of counsel dated 13 December 2021.
22 [Smith] v [Ford], above n 9, at [16] referring to a joint memorandum of counsel dated 9 November 2022 and approved by the Family Court by minute on 23 November 2022.
[19] The parties filed a joint memorandum in the Family Court dated 27 October 2023. The memorandum recorded that there was no dispute that care and protection concerns existed and an order was required. All that was to be determined was the most appropriate kind of order to address the identified concerns. Around the same time, counsel assisting the Court requested that a s 78 interim custody order be made of the Court’s own motion in order to avoid further delay potentially worsening the situation for the children.23
[20] A hearing took place on 19 December 2023 before Judge Callinicos. He determined that a s 91 support order was appropriate, as opposed to a s 78 interim custody order. However, he also attached the specific condition to the Support Order that if there were significant changes for Ms Ford, such as losing her emergency housing, then a s 78 interim custody order would automatically issue.24 That would mean that the Chief Executive could assume legal care of the children.25 Arguably it would also mean suspending the terms of the Interim Parenting Order. It is this decision to make the Support Order that is now subject of this out of time application for leave to appeal.
Decision for which leave to appeal is sought
[21] At the time of the relevant hearing on 19 December 2023, Mr Smith was represented by counsel.26 Prior to the hearing, submissions on behalf of Mr Smith favoured the making of a support order. However, on the day before the hearing, Mr Smith’s position changed. Instead, he supported a s 78 interim custody order in favour of Oranga Tamariki with an additional condition that the children not reside with their mother. This vacillation can hardly be criticised. The situation was dynamic and rapidly evolving.
23 Judge Callinicos was not satisfied that a s 78 interim custody order should be made on an own motion basis by the Court as he was that concerned both parents and Oranga Tamariki should have the right to be heard on such an important matter. Instead by minute of 10 November 2023 he directed that an urgent hearing be allocated. See Chief Executive of Oranga Tamariki — Ministry for Children v [Smith] FC Napier FAM-2022-041-000157, 10 November 2023.
24 Chief Executive of Oranga Tamariki — Ministry for Children v [Smith], above n 2, at [30].
25 Oranga Tamariki Act, s 79.
26 Mr Smith represented himself on application of leave to appeal the decision.
[22] Judge Callinicos summarised the extensive background and proceedings in his oral judgment. After narrating the concerns regarding the children, he recorded that neither parent wished to see the children removed by the Chief Executive.27 He also noted that at the relevant time there was no alternative placement with family or whānau although Mr Smith had indicated that his sister might be an available placement. The Judge noted that option still required full assessment in the ordinary way.
[23] The Judge then set out the threshold criteria for the making of a care or protection order, namely:
(a)the children are in need of care or protection;28
(b)a family group conference has been held addressing the care and protection issue;29 and
(c)the care and protection concerns cannot be adequately addressed in a way other than by making an order.30
[24] The judgment recorded that all parties accepted that the threshold criteria had been met.31
[25] After summarising the care and protection concerns, the Judge referred to the key principles in ss 5 and 13 of the Act, observing that the Court must lean towards the least intrusive intervention.32 He described the situation as “extremely finely balanced” between whether the children’s care and protection concerns could be adequately addressed by a s 91 support order as opposed to an interim custody order pursuant to s 78. His reasoning is captured in the following paragraphs:
[28] Again, I need to take a cautious approach, because the consequences of making a finding without an evidentiary platform could be catastrophic. I raise that as a reasonable warning that if cogent evidence were available that
27 Chief Executive of Oranga Tamariki — Ministry for Children v [Smith], above n 2, at [13].
28 Oranga Tamariki Act 1989, ss 14, 14AA, and 83(1).
29 Sections 70(1) and 72(1).
30 Section 73(1).
31 Chief Executive of Oranga Tamariki — Ministry for Children v [Smith], above n 2, at [8] and [18].
32 At [23].
inappropriate and negative comments are still being made to the children, then that would heavily support the need to make a s78 order to effect a change of placement.
[29] I believe that the main issues at the moment could be dealt with by a s 91 order with default setting applying. I will therefore make a s 91 support order. The Court can make a substantive s 91 order because, by and large, all the parties are agreed that there is basis for at least that. The only point of difference is whether the Court should intervene further by a custody order. For the reasons I have given, I have determined that aspect.
[30] I will make a special condition to the s 91 order that should [the mother’s] accommodation at [redacted] be terminated without adequate stable alternative accommodation being immediately available to her and the children, such as traditional housing or rental, then a s 78 order will automatically issue by which Oranga Tamariki will have the proper legal status to take the placement of the children. In that situation, Oranga Tamariki should file an affidavit detailing the loss of adequate housing, which should be referred to me for making of the contingency order.
Legal principles
[26] A support order places a duty on the Chief Executive to monitor the standard of care, protection and control being provided to, or exercised over, a child or young person; and to provide, or co-ordinate the provision of, such services and resources (including financial services and resources), whether from the community or otherwise, as will ensure that appropriate care, protection, and control are provided to, or exercised over, that child or young person.33
[27] A custody order under s 78 of the Act is an interim order relating to the custody of a child pending determination of the proceedings (or in urgent cases) which directs that a child or young person may be placed under the care of the Chief Executive rather than any family or whānau member. The making of such an order does not automatically mean that the child or young person would be removed from a parent but provides the legal capacity for the Chief Executive to effect a change in placement of the children.34 It seems that it would have the effect of suspending the Interim Parenting Order.
33 Oranga Tamariki Act 1989, s 93.
34 Chief Executive of Oranga Tamariki — Ministry for Children v [Smith], above n 2, at [24].
[28] Section 341 of the Act provides a right of appeal to the High Court against decisions of the Family Court. Rule 20.4 of the High Court Rules 2016 provides that if an appeal is not brought within 20 working days of the decision, the Court may extend the time prescribed by special leave if the enactment permits it.
[29] The leading appellate authority on applications for leave to appeal out of time are the decision of the Supreme Court in Almond v Read35 and the Court of Appeal decision in My Noodle Ltd v Queenstown-Lakes District Council.36
[30] In Almond the Supreme Court set out the relevant principles. An application to extend time by a day or so as a result of an error or miscalculation should generally be dealt with on the basis it is a minor slip-up in an exercise of right, and should generally be granted.37 The ultimate question is what the interests of justice require which requires consideration of such factors as:38
(a)the length of the delay;
(b)the reasons for the delay;
(c)the conduct of the parties, particularly of the applicant;
(d)any prejudice or hardship to the respondent or others with a legitimate interest in the outcome; and
(e)the significance of the issues raised by the proposed appeal.
[31] The merits of the proposed appeal may be relevant in order not to facilitate unjustifiable delaying tactics.39 But the merits may be overwhelmed by other factors and will not generally be relevant where there has been insignificant delay as the result of error and the respondents suffer no prejudice.40 Consideration of the merits in the
35 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.
36 My Noodle Ltd v Queenstown Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518.
37 Almond v Read, above n 35, at [37].
38 At [38].
39 At [39].
40 At [39(b)].
context of an extension of time must necessarily be relatively superficial. Refusing an extension on the basis of merits should only occur where the appeal is clearly hopeless.41
[32] In prior decisions, the Court of Appeal has also emphasised that where a proposed appeal argument is untenable it can be rejected, even where there is only a short delay.42
Grounds for leave to appeal
[33]I discern that Mr Smith’s proposed grounds of appeal are:
(a)Non-compliance with s 130 of the Act in that the support plan prepared under s 128 in relation to him was out of date and did not meet the requisite statutory criteria in s 73.
(b)Breach of his rights under ss 26 and 27 of the New Zealand Bill of Rights Act 1990 (NZBORA).
(c)Unfair influence of the lawyer appointed to represent the children.
(d)Non-disclosure by Oranga Tamariki to the Court, including evidential errors in a s 133 report.
[34] Materially, the stated relief he seeks in the proposed appeal is for the Interim Parenting Order to be quashed and “that any preserved (sic) risks are managed under a voluntary safety plan for the overall safety of the paternal father and children from further allegations”.43 However, as already noted, the Interim Parenting Order was not made in the judgment he seeks to appeal and therefore cannot be addressed even if leave to appeal that judgment had been granted.
41 At [39(c)].
42 Mawhinney v Commissioner of Inland Revenue [2014] NZCA 450, (2010) 26 NZTC 21-101 at [19]; Mathiesen v Mathiesen [2015] NZCA 92, (2015) 30 FRNZ 181 at [22].
43 Notice of leave to apply to appeal dated 14 February 2024. I assume that Mr Smith intended to say “perceived” rather than “preserved”.
[35] In support of granting leave to appeal out of time, Mr Smith explains that the delay was due to a combination of the Christmas vacation, notice from his then lawyer that she could no longer represent him and an inability to secure alternative representation.
[36] The Chief Executive opposes the grant of leave. He argues that Mr Smith is really seeking review of both Judge Callinicos’ decision and the 2021 interim parenting decision although this did not form part of the judgment under appeal and was made in separate proceedings under COCA. He concedes that the length of delay insofar as that decision is concerned is short and explained but argues that the appeal is entirely without merit so leave should not be granted.
Analysis
[37] At the time of hearing this application the children were in the day-to-day care of their mother pursuant to the Interim Parenting Order. Mr Smith has supervised contact with them. No final determinations have yet been made about the long-term care and contact arrangements for the children. I acknowledge that this has caused genuine concern and distress to Mr Smith.
[38] A support order has a limited duration of one year.44 The Support Order which Mr Smith wishes to appeal was made on 19 December 2023. It is therefore due to expire shortly. This provides material context.
[39]I turn to the relevant considerations.
[40] I am satisfied that the reason why the application for leave was filed out of time is adequately explained and no prejudice resulted. The delay was short and coincided in part with the Christmas vacation period. This consideration not only favours granting leave but typically suggests that the more appropriate course would have been for the Chief Executive to consent so that the substantive appeal could have been dealt with promptly.
44 Oranga Tamariki Act 1989, s 91.
[41] There is nothing in the conduct of Mr Smith before the Court which points away from exercising the Court’s discretion in favour of granting leave. This is therefore a neutral consideration.
[42] Similarly, there is no public interest at stake beyond the interest in finality of litigation and no novel questions of law at issue. This does not mean that these issues are not of importance to the parties. On the contrary, they are crucially important, particularly to these young children whose well-being and best interests are the first and paramount consideration in applying the Act.45
[43] The submissions of the lawyer for the children do not explicitly address the interests of the children but urge the Court not to grant leave on utility grounds, submitting that the remedy Mr Smith seeks is not one which this Court is able to grant. I read that submission as at least implicitly advocating that delay is not in the children’s best interests.
[44] The crux of this application then is whether the appeal lacks merit and whether this can be assessed on a necessarily superficial examination based on the matters pleaded.46
[45] I conclude that the proposed appeal has no prospect of success and therefore leave to appeal should not be granted in the circumstances of this case. I set out my reasons.
[46] First, Mr Smith seeks relief which this Court cannot grant even if an appeal succeeds. Mr Smith argues that the children should have been placed in his custody instead of the Support Order being made. Yet, all parties at the related hearing on 19 December 2023 were agreed that grounds for a care or protection order were established. The only live issue was the type of disposition – either a s 91 support order or a s 78 interim custody order.
45 Oranga Tamariki Act, s 4A(1).
46 Mawhinney v Commissioner of Inland Revenue, above n 44, at [19].
[47] An appeal under s 341 of the Act proceeds by way of rehearing. The appellate court may make any decision it thinks ought to have been made by the court at first instance. What was not squarely before the Family Court was the interim parenting status. An appellate court cannot exercise powers under COCA on an appeal of a support order under a different Act. This is notwithstanding Mr Smith’s primary (and reasonable) point that the two issues – parenting and care and protection – are so intertwined that appeals against those two types of orders should be heard together. Regrettably, that is not achievable in the present circumstances and on the present application. Relatedly, the most recent decision by the Family Court also ‘bites’ here because that decision declined leave to appeal the Interim Parenting Order.47
[48] The submission of Mr Bryant, for the Chief Executive, that neither a s 91 support order, nor a s 78 interim custody order would have had the effect of placing the children in Mr Smith’s care is persuasive.
[49] Secondly, the pleaded grounds of the proposed appeal have no merit. Mr Smith argues that the Judge erred in making the Support Order based on a plan prepared under s 128 of the Act without the prescribed information listed in s 130(1)(ea). This submission overlooks s 130(2) of the Act which provides:
(2) A plan need not contain the matters set out in subsection (1)(ea) if the plan is prepared on the basis that there is no realistic possibility that the child or young person will be returned to the care of a parent, guardian, or other person referred to in subsection (1)(ea)(i), or if the plan relates only to a services order under section 86 or a support order under section 91. (emphasis added)
[50] Mr Smith contends that the Judge’s conclusion was contrary to s 73 of the Act because Oranga Tamariki did not notify the Family Court that two earlier FGCs had in fact reached agreements as to care and custody. Section 73 provides that a care or protection order may only be made when the Court is satisfied that it is not practicable or appropriate to provide care or protection for the child by any other means. I apprehend that Mr Smith’s point is that, if all parties, including Oranga Tamariki had been satisfied of proposed care plans for the children agreed at those earlier FGCs, it follows that there were indeed other means to provide care and protection.
47 [Smith] v [Ford], above n 9.
[51] Mr Bryant submits that, at the relevant time of the hearing on 19 December 2023, there was no such agreement which could be adopted as the earlier plans made following the FGCs had broken down and no new plan had been successfully formulated. Instead, he contends that this proposed ground of appeal seeks to undermine the agreed position at the hearing on 19 December 2023 that the conditions for making a care and protection order were satisfied. I agree with this submission.
[52] Mr Smith proposes to advance an argument that the Family Court’s reference to his prior convictions in the United Kingdom for possession of child sexual exploitation material effectively subjected him to double jeopardy in contravention of s 26 of the New Zealand Bill of Rights Act 1990. This argument is misconceived. The concept of double jeopardy does not apply in this context, being limited to criminal matters.48 However, those historical matters are relevant matters in assessing care and protection concerns. I pause to note that Mr Smith has, on his own initiative, focused on therapeutic intervention including obtaining risk assessment opinions of experts in an effort to assuage concerns.
[53] Mr Smith also seeks to argue that the delay in allocation of substantive hearings in the Family Court breaches natural justice. This argument appears to be directed to the parenting order issues under COCA rather than the care and protection matters. An appeal may also be counter-productive to Mr Smith’s justifiable concerns about delay since it may well lead to further delay in the resolution of the substantive issues.
[54] There are other matters which Mr Smith proposes to raise in the context of an appeal, should leave be granted. None of those matters directly bear on the decision of the Family Court to make the Support Order. Mr Smith’s complaint about the conduct of lawyer for the children has been dismissed by the Family Court. I accept that complaints of that type are more appropriately dealt with by the mechanisms in the Family Court. The complaint about inaccuracy in a s 133 report directed in the COCA proceedings was not part of the material before the Family Court Judge at the
48 Chapman v Institute of Chartered Accountants of New Zealand [2001] NZAR 456.
hearing on 19 December 2023. Challenges to the s 133 report are for the COCA proceedings and cannot be dealt with in the auspices of this proposed appeal.
[55] Depriving a party of a right to appeal is a not insignificant step. However, in the particular circumstances of this case and in the context of what the Family Court has described as “unremitting proceedings involving significant discord”49 between parents of young children, I decline to grant leave where the stated grounds of appeal are without merit and the order which is to be the subject of the appeal is limited in duration.
Result
[56]I decline leave to appeal.
[57] If there are any questions regarding costs (and my preliminary view is that this is a matter in which costs should lie where they fall), the parties may file memoranda of no more than five pages, within 21 days, with any responsive memorandum within a further 14 days.
............................................................
Walker J
49 Chief Executive of Oranga Tamariki — Ministry for Children v [Smith] above n 2 at [1].
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