VLS v BJS - [2020] NZHC 1634

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-5

[2020] NZHC 1634

BETWEEN
VLS

Appellant

AND

BJS

Respondent

Hearing: 2 July 2020

Appearances:

E Lewes for Appellant Respondent appears in Person

Judgment:

2 July 2020

JUDGMENT OF GRICE J

(Application for leave to appeal out of time)

[1] This involves leave to appeal from a decision of the Family Court dated 17 July 2018.1 The Family Court confirmed with modification provisional maintenance orders made on 21 October 2016 in the Family Court in Manchester, United Kingdom. Ms S, the appellant, is the mother of the child who was 11 years at the date of the New Zealand Family Court decision.2

1 This decision was delivered orally on 2 July 2020. The written form has been edited and footnoted before distribution.
2 [S] v [S] DC Hutt Valley FAM-2017-096-453, 17 July 2018 [“Family Court judgment”].

VLS v BJS [2020] NZHC 1634 [2 July 2020]

[2] Ms S continues to live in the United Kingdom. Mr S, the child’s father, has been living in New Zealand since 2012. He immigrated here with his partner and children. They reside in the Wellington vicinity.

[3] The application for leave to extend time to appeal from the 17 July 2018 decision was lodged or filed in the High Court on 11 December 2019. It was served on Mr S on 17 January 2020. It is common ground that the appeal should have been filed 20 days after the decision of the New Zealand Family Court, that is on or before 13 August 2018.

[4] Therefore, as Ms Lewes indicated, the appeal would have been some 15 months out of time by the time the application for leave was filed in the High Court and Mr S was served and almost 18 months after the hearing of the Family Court decision.

Approach to application for leave to appeal out of time

[5] The Supreme Court in Almond v Read3 noted that the ultimate question is what the interests of justice require when considering an application for an extension of time to appeal. It necessitates an assessment of the particular circumstances of a case and pointed to relevant factors informing the exercise of the discretion including:

(a)the length of the delay;

(b)the reasons for the delay;

(c)the conduct of the parties, particularly that of the appellant;

(d)any prejudice or hardship to the respondent; and

(e)the significance of the issues raised.

[6] The Supreme Court also noted that while the merits may be relevant in principle to the exercise of the discretion to extend time, that must be qualified in that

3 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38].

there…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading VLS v BJS

Details

AGLC: VLS v BJS [2020] NZHC 1634
Case: [2020] NZHC 1634
Decision Date: 2 July 2020

CaseChat Overview and Summary

In the High Court of New Zealand, the case of VLS v BJS involved an appeal for leave to appeal out of time from a decision of the Family Court dated 17 July 2018. Ms S, the appellant and mother of the child, continued to live in the United Kingdom while Mr S, the father, resided in New Zealand. The application for leave to extend time to appeal was lodged 15 months out of time, and the appeal should have been filed on or before 13 August 2018. The court assessed the application for leave based on relevant factors including the length of delay, reasons for the delay, conduct of the parties, prejudice to the respondent, and the significance of the issues raised.

In this case, the delay was due to Ms S not becoming aware of the New Zealand Family Court decision until well after it was delivered, and further time was taken up with exchanges between the UK authority, the New Zealand Minister of Justice, and Ms S. Ms S submitted that there was no prejudice to Mr S from granting the leave to appeal because the financial obligations incumbent on him to pay maintenance existed anyway and continue to exist. However, the court found that there was resultant prejudice as Mr S had relied on a New Zealand Family Court judgment in order to make regular maintenance payments to meet his obligations since the Family Court orders were made. The court also considered the merits of the case and found that they were not strong.

Considering the length of time that has elapsed since the date of the Family Court judgment, the reasons for delay, and the prejudice to the respondent, the application for leave to extend time to appeal was dismissed. No order for costs or disbursements was made in the circumstances.

Orders