Vedebeck v Family Court, Auckland Registrar General

[2020] NZHC 345

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1796

[2020] NZHC 345

UNDER

The Births, Deaths, Marriages and Relationships Registration Act 1995

BETWEEN

EVELYN VIDEBECK

Appellant

AND

THE FAMILY COURT, AUCKLAND REGISTRAR GENERAL

Respondent

THE REGISTRAR GENERAL OF BIRTHS DEATHS & MARRIAGES

Hearing

(teleconference):

26 February 2020

Appearances:

The Appellant in person

No appearance by or on behalf of the Respondents (not served)

Judgment:

4 March 2020

JUDGMENT OF POWELL J

[redacted version]

This judgment was delivered by me on 4 March 2020 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

VIDEBECK v THE FAMILY COURT, AUCKLAND REGISTRAR GENERAL [2020] NZHC 345 [4 March 2020]

[1]    The appellant, Evelyn Videbeck, has appealed a decision of Judge A M Manuel in the Family Court at Auckland. Judge Manuel dismissed proceedings brought by Ms Videbeck purportedly under the Births, Death, Marriages and Relationships Registration  Act  1995.1  In  her  Minute  Judge  Manuel  set  out  the  genesis  of  Ms Videbeck’s proceedings, a successful application to change the sex designated on a birth certificate, made to the Family Court at Auckland in 2012, and noted that following the order Ms Videbeck arranged with the Registrar of Births Deaths & Marriages for the name of Evelyn Jane Videbeck to be recorded on her birth information.

[2]    Ms Videbeck returned to the Family Court in 2015. It appears Ms Videbeck was having issues with both previous and current names recorded on her birth certificate. As Judge Manuel noted:2

In her documents, Ms Videbeck pointed to the difficulties she asserted had flowed from these troublesome names. She had been discriminated against over property and employment matters, dental procedures, accommodation, social interactions and during her dealings with authorities such as the police. She explained in her affidavits and movingly today in Court [a number of other, very serious, issues]. She has suffered significant breaches of privacy and confidentiality. She raised complaints against Mr Harrison but given his demise she accepts that she cannot continue with the complaints. She was prepared to rather graciously characterise them as probably caused by a misunderstanding.

The remedies which Ms Videbeck is seeking (or is possibly seeking) from the Court have been identified by Ms Halford as follows:

(a)Monetary compensation by way of damages from the Family Court.

(b)An order wiping her police records from 2013.

(c)A direction for all other Court files to be destroyed and to prevent anyone accessing them.

(d)The reinstatement of her driver’s and real estate licences (possibly).

(e)A Master Builders’ certification for a house which she built some years back (possibly).

1      Videbeck v Registrar-General, Births Deaths  &  Marriages:  Minute  of  Judge A M  Manuel, 12 June 2019.

2      At [16] – [17].

[3]    Notwithstanding the identification of these issues, Judge Manuel went on to conclude:3

As a Judge of this Court my powers are limited to those conferred on me by the law. There are many wrongs I wish I could remedy but it is not within my power to do so. The remedies which Ms Videbeck seeks are outside the powers conferred on me as a District Court Judge.

Obviously, one of the remedies she seeks (a change of the names which have been so inauspicious for her) could be achieved by lodging a deed poll with the Registrar General of Births, Death and Marriages.

There is no jurisdiction to found Ms Videbeck’s causes of action insofar as I can identify them.

I acknowledge and accept that a name is a critical part of one’s identity. It shapes who we are, how we feel about ourselves and, to some extent, how the world treats us, but I am unable to provide Ms Videbeck with the remedies she is seeking. Her proceedings are dismissed for want of jurisdiction.

The appeal

[4]    Ms Videbeck has appealed on the basis Judge Manuel’s decision was wrong in fact and law, but no particulars have been provided as to what the factual or legal errors might be.

[5]There are in any event fundamental procedural issues with the appeal.

(a)First, it appears that the appeal was filed out of time. Ms Videbeck’s appeal appears to have been brought pursuant to s 16 of the Family Court Act 1980 and as a result the time requirements for appeals as specified in  the High Court Rules 2016  are applicable.  Specifically, r 20.4(2)(b) provides that the appeal must be filed within 20 working days after the decision appealed against is given. Judge Manuel’s decision was given on 12 June 2019 and the notice of appeal was received by the Registry on 12 July 2019, which is two days out of time.

(b)In addition, even though the appeal was filed on 12 July 2019 an appeal is not brought until it has been served on all parties.4 As Ms Videbeck

3      At [18] – [21].

4      High Court Rules 2016, r 20.6(1)(c).

has confirmed the appeal has not been served on any party. As a result, and leaving aside the late filing date, the appeal has therefore not yet been brought within the time prescribed in r 20.4(2(b)).

[6]    As I discussed with Ms Videbeck, although an extension of time can be granted pursuant to r 20.4(3) and (4) of the High Court Rules such an extension is at the discretion of the Court. In deciding whether to grant an extension the Court is required to take into account the length of the delay and the reasons for it, the extent of any prejudice caused by the delay and the prospective merits of the appeal and whether the appeal raises any issue of public importance.5

[7]    I therefore adjourned the telephone conference on two occasions to enable  Ms Videbeck to consider these issues and/or instruct a lawyer and indeed to consider what Judge Manuel had said in her judgment. While Ms Videbeck provided a detailed memorandum to the Court following the previous telephone conference which provided some further background detail, this did not address the procedural issues, nor indeed did it shed any further light on the substantive merits of the appeal.

Discussion

[8]    Having considered the materials filed by Ms Videbeck carefully, it is clear that not only has the appeal been brought out of time but like Judge Manuel I am unable to see any basis upon which the appeal could succeed were it to go to hearing. Although the Court is sympathetic to Ms Videbeck’s claims, there simply does not appear to be any jurisdiction to achieve any of the outcomes Ms Videbeck appears to be seeking, noting in particular that the Court has no jurisdiction to change her name as this must be done by deed poll as has been pointed out by Judge Manuel.

[9]    In the circumstances there can be no basis for extending time for bringing this appeal and as a result it must be dismissed.

5      My Noodle Ltd v Queenstown-Lakes District Council (2009) 19 PRNZ 518 (CA).

Decision

[10]The appeal is dismissed.

Powell J