Swain v Swain HC Palmerston North CIV 2010-454-421

[2010] NZHC 1672

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV 2010-454-421

BETWEEN  EMMA SOPHIE SWAIN Appellant

ANDTIMOTHY JAMES SWAIN Respondent

Hearing:         17 September 2010 (Teleconference) Counsel:  R Lewis for Appellant

G Mason for Respondent
M S Dobson for Children

Judgment:      17 September 2010

JUDGMENT OF RONALD YOUNG J (on application for adjournment)

[1]      This is an appeal from a decision of the Family Court regarding granting of a parenting order in favour of the respondent and providing the appellant with supervised contact with the children on three days in each week up to three hours on two week days and up to four hours on a Saturday.  This judgment deals with the following issues; is the appeal deemed abandoned; if not should it be adjourned? Some background is necessary to provide context.

[2]      The  judgment  was  given  on  18 May 2010.     The  appeal  was  filed  on

16 June 2010.    The  notice  of  appeal  was  therefore  filed  outside  the  required

21 working days.   An application for special leave to appeal out of time therefore should have been made.

EMMA SOPHIE SWAIN V TIMOTHY JAMES SWAIN HC PMN CIV 2010-454-421  17 September 2010

[3]      On 15 July 2010 there was a conference with regard to this matter with the Associate  Judge.    At  that  stage  Mr Paine  was  granted  leave  to  withdraw  as representing the appellant.   Mr Dobson was reappointed as counsel for the child. Timetable orders were made in terms of Mr Mason’s memorandum of 7 July.  The Associate Judge’s note said:

Security for costs required unless within 14 days a grant of legal aid is confirmed.

[4]      An application for legal aid had been made by the appellant but by that stage not granted and so on 15 July it is not apparent that the appellant had a lawyer at all.

[5]      There was a further telephone conference on 12 August 2010.  At that stage Mr Lewis appeared, indicated he had not had formal instructions from the appellant but hoped to do so and hoped to advance her appeal.  The Associate Judge ordered that by 27 August 2010 the appellant was to:

a)        file a notice of change of solicitor;

b)        file an amended notice of appeal;

c)        file a notice of application for leave to appeal (out of time); and

d)advise that the Court that legal aid was granted or pay security for costs  calculated  in  terms  of  the  rate  in  Rule 20.13  with  the  costs category being 2B and the hearing being one day.

[6]      On 10 September 2010 Mr Mason, in a memorandum, pointed out that the appellant had neither paid security for costs nor advised that legal aid had been granted.   He said given those circumstances the appeal was deemed to have been abandoned by virtue of s 74(2) of the District Courts Act 1947.

[7]      As a result of that memorandum I arranged for a telephone conference with counsel  for  all  parties.    Prior  to  the  conference  Mr Lewis  now  acting  for  the appellant,  Mr Mason  and  Mr Dobson  all  filed  memoranda.    I  heard  counsel  at

9.00 a.m., 17 September and said I would give my reasons for adjourning the fixture of 22 September.

Appeal abandoned?

[8]      Mr Lewis’ memorandum made two basic points.  Firstly he said the appeal is not deemed abandoned.  An application for legal aid has been made by the appellant. In those circumstances a Judge must defer fixing of security until the application has been determined (Rule 20.13 HCR).   Mr Mason accepted that position.   I agree. This appeal is not deemed abandoned given the appellant has applied for but has not yet been advised of the success or otherwise of her application for legal aid.

Application for adjournment

[9]      Mr Lewis’ application for adjournment is essentially based on the difficulty that arises because he only yesterday received previous counsel’s file.   Further, although an application for legal aid has been made he has only now discovered that the Legal Services Agency have sought further information with respect to the legal aid application.  That has not, to date, been provided and so that application remains unresolved.  He says he cannot possibly be ready for a hearing next week.  He needs to get full instructions and will need to file amended grounds of appeal.

[10]     Mr Lewis says there are two issues that the appellant wishes to challenge in the Family Court decision.  They are:

a)        the order for supervised access as opposed to unsupervised access;

and

b)the  findings  of  the  Judge  in  relation  to  the  appellant’s  alcohol consumption  and  other  conduct.  She  says  these  findings  are

potentially relevant to the father’s application, now before the Family

Court, to relocate the children to Australia.

[11]     Mr Mason and Mr Dobson oppose the adjournment.  They say accepting the difficulties  that  Mr Lewis  is  under  that  he  could  have  done  more  to  obtain documents, filed an application for special leave to appeal and amended grounds of appeal well before this time.

[12]     Further, they point out that given the respondent has applied for an order to relocate the children to Australia, then it will be open to the appellant therefore to raise all of the issues of concern at that hearing.

[13]     I advised counsel at the telephone conference, after hearing submissions that I was prepared to grant the adjournment sought by Mr Lewis on tight conditions. The application for adjournment is therefore granted.  I record, however, that I made the following observations with respect to Mr Lewis’ memorandum which purports to identify new appeal grounds:

a)       Mr Lewis has made a number of allegations about the appellant’s previous counsel alleging he was “incompetent”.  By itself, of course, that is not a ground of appeal.  If as a result of failures by previous counsel the appellant’s case has not had a proper hearing then that could be a ground of appeal.  I emphasised to Mr Lewis the care that is required with regard to making such allegations.

b)Mr Lewis suggested that Mr Dobson “should have recused himself from continuing to act as lawyer for the child on his firm merging with that of the solicitors instructing Mr Mason as counsel for the respondent ...”.  I note that Mr Mason, as I understand it, immediately after the merger obtained alternative instructing solicitors.  Mr Lewis unfortunately described this as “simply window dressing”.   It is difficult to see how these circumstances could possibly be a basis to recuse Mr Dobson.

c)       Other  allegations  of  bias  are  made  against  Mr Dobson.     It  is incumbent on counsel, before they become grounds of appeal, to investigate the facts fully and ensure that they are truly more than simply dissatisfaction by the appellant with Mr Dobson’s views and assessment of the situation.

[14]     Further, I indicated to Mr Lewis that before he could expect the application for special leave to appeal to be heard he would need to canvass the Family Court to see whether the very issues he wishes to raise with this Court cannot be dealt with by the Family Court on the respondent’s application for relocation.  If the appellant’s concerns can be heard at the relocation case then this may be an impediment to granting leave to appeal.   If, however, the Family Court Judge felt the issues previously decided regarding the appellant could not be recanvassed before her then that may support the granting of leave to appeal.

[15]     The appellant must now move speedily to advance this case.  Too much time has already been lost.  The appellant must therefore now:

a)       within 14 days file and serve an application for leave to appeal along with proposed amended grounds of appeal together with any affidavits thought necessary.  As part of the application for leave to appeal the appellant should identify what, if any, further evidence the appellant may wish to obtain leave to call or any cross-examination she may wish to undertake;

b)within  14 days  comply  with  any  requests  by  the  Legal  Services Agency with respect to her application for legal aid and as soon as a decision  on  that  application  is  given  advise  the  Court  and  other counsel accordingly;

c)       within 14 days from today’s date seek an audience with the Family Court Judge hearing the relocation case to make enquiries regarding whether the issues that the appellant wishes to raise in this appeal being  unsupervised  access  and  the  Judge’s  findings  as  to  the

appellant’s alcohol abuse and personality disorders might be further canvassed at the relocation hearing;

d)as  soon  as  any  response  from  the  Family  Court  regarding  these enquiries is received place them before the High Court and the other parties accordingly.

[16]     As soon as this report is available seek a one hour fixture before me as to whether leave to appeal out of time should be given.   In the circumstances it is appropriate I complete the hearing of the leave application.

[17]     If leave is given then the Court can then timetable the filing of submissions and response.

[18]     I advised counsel that the orders in this judgment would be in draft form given I did not have the opportunity at the telephone conference to invite their comments.  I now do so.  They should provide any response to this memorandum by

5.00 p.m., Monday, 20 September 2010.

Solicitors:

R Lewis, RichardLewis Law, PO Box 941, Palmerston North 4440

email:  [email protected]

Ronald Young J

G Mason, Barrister, PO Box 560, Palmerston North 4440, email:  [email protected]

M Dobson, Wadham Goodman Lawyers, PO Box 345, Palmerston North 4440

email:  [email protected]