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,

PLEASE SEE judgments/

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 are instances where the merits or otherwise of the proposed appeal are overwhelmed by other factors.4 Such factors include the length of delay and prejudice to the respondent. In cases of significant delay caused by a legal advisor’s error where there was no prejudice to the proposed respondent, for example, the merits may not be as important. It also noted that where it cannot be said with confidence that the merits of the proposed appeal are either very strong or very weak, it may be difficult to reach a view on the merits in the context of an application to extend time. Therefore, an examination of the merits may not be appropriate.

[7]    Ms Lewes also referred to a number of decisions in which applications for leave to extend time to appeal had been considered. The thrust of those cases was that if there was a long delay it should be explained.5 If there has been a mistake on the part of legal advisors leading to the filing of the appeal out of time the Court would usually be sympathetic to an extension of time, particularly where counsel acted expeditiously to remedy the oversight.6

[8]    Ms Lewes referred to My Noodle Ltd v Queenstown-Lakes District Council7 where the delay was due to a genuine mistake on the part of the applicant’s legal advisors. This was remedied immediately by seeking consent from the respondents to an extension of time even though the delay was considered lengthy – it was approximately three and a half months, including the Christmas vacation. The Court found it produced no real prejudice to the respondents as before the oversight to lodge the appeal was discovered all parties knew that there was to be an appeal and they had assumed the appeal was on foot.8 The respondent was therefore on notice there was to be an appeal before the appeal time expired.

[9]    The Court of Appeal9 there also noted that the Court would be reluctant to grant an extension of time where the proposed appeal appeared hopeless. In that case the Court considered that the proposed appeal was not hopeless on the merits.

4      Almond v Read, above n 3, at [39].

5      L v Chief Executive of Oranga Tamariki [2019] NZHC 1655 at [19].

6      Grey v Elders Pastoral Holdings Ltd (1999) 13 PRNZ 353 (CA) at [15] and Havanaco Ltd v Stewart (2005) 17 PRNZ 622 (CA) at [7].

7      My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224.

8      At [20] and [21].

9      My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224.

Grounds for extension of time in this case

[10]As to the grounds for extension of time here Ms S submits:

(a)The delay

[11]   Ms S says the delay is explainable because she did not become aware of the New Zealand Family Court decision until well after it was delivered. This was due to the fact that she remains in the United Kingdom and it was the central authority10 which was pursuing the enforcement of the Manchester Family Court Provisional Maintenance Agreement. Therefore, counsel appearing for Ms S who was named as the applicant in the New Zealand Family Court, was in fact taking instructions from the UK central authority. That was the body entitled to confirm provisional maintenance orders under s 138 of the Family Proceedings Act 1980, New Zealand. That provision was enacted as part  of  New Zealand’s  obligations  under  the  United Nations Convention on the Recovery Abroad of Maintenance.11

[12]   The Family Court Judge could either confirm the order with or without modification or decline to confirm the order. It is common ground that that is the appropriate process for enforcing UK maintenance orders.

[13]   Ms S says she was not advised of the making of the decision by the central authority until 4 September 2018. Ms Pearce, the lawyer acting for Ms S (instructed by the central authority) apparently had sent an email to Ms S and to the central authority advising of the outcome of the case shortly after the hearing on 26 July 2018. Ms S says she did not receive this email although it seems that the central authority did.

[14]   A subsequent email from the central authority dated 4 September 2018 was received by Ms S at the same email address as the one Ms Pearce had sent the previous email to. Ms S says she then requested the UK authority to appeal. She says further time was taken up with exchanges between the UK authority, the New Zealand Minister of Justice and Ms S. Therefore, she says it was not until July 2019 that she

10     Family Proceedings Act 1980, ss 2 and 138(2).

11     As explained in the Family Court judgment, above n 2.

instructed counsel in New Zealand on the matter. Ms Lewes also elaborated on the problems finding a New Zealand lawyer who was prepared to take on a legal aid case of this nature.

[15]   Ms S says that yet further time from her instructing New Zealand solicitors was taken up by the delay caused by her having to apply for legal aid which was refused and she had to appeal.

[16]   Finally, legal aid was granted on the appeal in September 2019. Two months later her New Zealand lawyers received her file from her previous lawyer. Ms S’ application and affidavit in support together with an application for leave to appeal was filed in this Court two months later on 11 December 2019 but as I have mentioned it was not until the new year (17 January 2020) that Mr S was served.

[17]   Ms Lewes also emphasised that since the filing and service of the application for leave to appeal, there have been intervening events including the COVID alert levels which have prevented this matter being progressed in this court in a timelier fashion.

[18]   Ms Lewes 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. In addition she said, if Ms S had been resident in New Zealand the regime applying to the calculation of maintenance would have been that administered by the New Zealand Inland Revenue Department under the Child Support Act 1991. Assessment is a reasonably formal process which requires a calculation to be made of the responsibilities of the payer of maintenance together with income and associated matters which leads to an outcome which Ms Lewes submitted in this case that figure would have been higher than the result reached by the Judge in the Family Court decision.

(b)The merits

[19]   Ms Lewes says the merits are strong but it was not necessary to go into them in too much depth given the arguments on delay and prejudice. However, to consider

the merits at least at a high level review of the judgment of  the  New Zealand Family Court is needed.

[20]   Ms S was represented at the hearing in the Family Court for confirmation of the United Kingdom provisional maintenance order. She notes that it was actually the central authority that instructed the New Zealand lawyer, Ms Pearce, who acted for Ms S, named as the applicant, in the proceedings at that hearing. It appears that from the submissions filed by the applicant that it was clear that Mr S’s financial affairs would be closely looked at during the hearing before the Family Court. Initially the respondent had disputed paternity but that issue did not feature at the hearing before the Family Court at all. The sole issue appears to have been the financial circumstances of Mr S in particular.

[21]   The submissions by the applicant filed  in  the  Family Court  indicate  that Ms Pearce had been briefed on the financial circumstances of Ms S and presumably supplied with information concerning Mr S. Ms Pearce cross-examined Mr S on his means.

[22]   On 21 October 2016 a provisional order had been made by the Family Court in Manchester, United Kingdom requiring the respondent to make periodic payments for the benefit of the child. The provisional order had then been modified by the United Kingdom court and it was the modified order that was the subject of the confirmation application in the New Zealand Family Court  in  July  2018.  The  New Zealand Family Court order (as further modified) provided:

1.The requirement that the Respondent, BJS (“Mr S) pay a lump sum of £7,000.00 for child maintenance is cancelled.

2.The requirement that Mr S pay the Applicant, VLS, periodic payments of £447.00 per calendar month for [the child’s] benefit is varied as follows:

2.1Mr S is required to make periodic child maintenance payments of $200.00 per calendar month from 1 August 2018.

2.2The  periodic  child  maintenance  payments  will  rise to

$300.00 per calendar month as and from 1 October 2019.

The periodic child maintenance payments will continue until the child turns 16 years of age on 20 October 2022 or until the child ceases full time education, whichever is the earlier.

3.Mr S is required to pay a lump sum of $1,000.00 for arrears of child maintenance from 1 October 2017 to 1 August 2018. The arrears of $1,000.00 are to be paid at the rate of $50.00 per month with the first payment due on 1 August 2018. Payment of the arrears is in addition to the periodic payments set out above.

[23]   At the New Zealand hearing the Family Court heard evidence from Mr S, who was also represented by a lawyer at the hearing. On the basis of the evidence the Judge found the provisional order should be modified. He found that Mr S and his partner lived with their four children, he received $120,000 salary and his wife also worked. The Judge found they owned their own home with a significant mortgage and noted that an analysis of bank account statements had been provided by Mr S. He found that Mr S did not lead an extravagant lifestyle.

[24]   The Judge said there were no savings and there was a shortfall in the family’s monthly income expenditure in the region of $1,000 (plus or minus). The Judge said that a formula assessment of child support if both parties were living in New Zealand would lead to a result “somewhere north of $800 a month”.12 The Judge noted his calculation in that regard did not take into account any possible grounds for departure from a formula assessment.

[25]   The Judge also found that Mr S had been under a misapprehension that once he left the United Kingdom he would be relieved of any obligation to pay periodic maintenance toward the child. He apparently had been led to believe that. The Judge considered it was inappropriate to make an order of a lump sum payment for the past in view of those circumstances given Mr S had no means to make payment of a lump sum of that magnitude.13 The Judge applied the same logic in relation to Mr S’s obligation to pay arrears which had accrued since the making of the provisional order until service. He noted that Mr S had been served on about 2 October 2017.

12     Family Court judgment, above n 2, at [8].

13     At [11]-[12].

[26]   The Judge in conclusion found that future maintenance should be paid at $200 a month with a $50 arrears component. On that basis he awarded a sum for arrears being $100 a month, as I set out earlier, from October 2017 until the date of the judgment, a total of $1,000. The monthly payment would increase to $350 a month, including $50 arrears, from 1 October 2019. He based that date on a date when Mr S and his partner would have repaid a $30,000 loan and the Judge made no order as to costs. In conclusion he made the orders that I have set out above.14 No order was made.

Analysis

[27]   I first turn to consideration of the length of time that has elapsed since the date of the Family Court judgment.

[28]   I note that Ms S has filed an affidavit saying she did not receive the comprehensive report as to the outcome of the hearing of 17 July 2018 which had been apparently emailed to her by Ms Pearce. Ms S attaches to her affidavit a copy of the letter that Ms Pearce had purported to send on 26 July 2018 which Ms S says she did not receive. Ms S acknowledges that the email that Ms Pearce sent enclosing that 26 July letter went to the central authority and was copied to Ms S at her correct email address.

[29]   There is no supporting affidavit by Ms Pearce indicating any “bounce back” of that email was received, nor is there any evidence from the central authority as to whether or not they received that email. However, it appears then central authority did receive it because it seems that they supplied it to Ms S some months later when Ms S made an inquiry.

[30]   An important omission from Ms S’ affidavit was related to Ms Pearce’s assertion in her letter of 26 July 2018 which has been produced by Ms S that Ms S had contacted Ms Pearce directly after the hearing and had been advised of the outcome. Ms Pearce says in the letter:

14     Family Court judgment, above n 2, at [14](a).

Ms S has contacted both myself and the court registrar directly to ascertain the outcome of the hearing. For that reason I have copied her into this email.

[31]   There is no explanation by Ms Pearce of what that contact with Ms S entailed nor does Ms S make any comment on it nor indeed acknowledge that she did know the outcome of the case some two months before she had the formal letter of 26 July. However, even allowing that Ms S did not receive notification of the decision until two months after it had been made, it was still a further 15 months before the appeal was lodged. In the circumstances I am of the view that Ms S knew the result of the New Zealand Family Court judgment immediately after it or at the latest two months later.

[32]   There is also no indication on the file and Ms Lewes confirmed this position, that Mr S or his lawyer was notified that an appeal was being considered. It seems clear that Mr S was not advised of the appeal until he was served with the application for leave to appeal in January 2020. The indication that an appeal would be lodged came out of the blue for Mr S at that time.

[33]   Ms S explained the 15 months delay away be the fact first that she was liaising with the Minister of Justice in New Zealand. She was apparently advised by the Minister of Justice of the availability of legal aid. She says by the time she had gone through the process and found a lawyer who would act for her there were further delays so it was not until a further 12 months or so until the lawyers got to work on the application for leave to appeal.

[34]   Ms S indicated that her new lawyers obtained the file from a previous lawyer and there was some delay over this as well so they were unable to prepare the application for leave to appeal and affidavit any earlier than the time it was prepared and filed in December 2019.

[35]   However, no reason has been given as to why Mr S was not alerted that an appeal might be on the way.

[36]   It seems clear with modern communications, telephone, email and other communications that Ms S could have pursued her appeal with more diligence than

appears to be the case. I am not satisfied with the explanations as to the substantial delays in this case. However, putting that to one side I now turn to the issue of prejudice.

Prejudice

[37]   In the 18 months since the date of the New Zealand Family Court orders Mr S has been paying the amount ordered in accordance with his obligation under those Family Court orders. However, he has not been making provision for the possibility that there would be a successful appeal from the New Zealand Family Court’s modification of the orders.

[38]   Mr S appeared in person today and has attended to the filing of the various memoranda and other documentation in relation to this application for leave to appeal personally. He says the legal expenses in relation to the Family Court Hearing in 2018 were considerable which is why he is undertaking the conduct of this application personally.

[39]   In his memorandum to the Court he said that he is now responsible for the upkeep of five children and in that he includes the child. He indicates that although there was some confusion in the Family Court hearing, he is responsible for four children in New Zealand aged from 14 to 18 years. He says that he has no disposable income of any substance and no savings.

[40]   In his memorandum of 14 April 2020 he set out in detail a number of matters relating to these proceedings, including a number of matters which are not directly relevant to this application. These included:

(a)an allegation of conflict of interest in relation to counsel for the appellant;

(b)the background to his relationship with Ms S and the fact he was a student aged 17 years when the child was born;

(c)his cooperation with the child support agencies in the United Kingdom and New Zealand in relation to his obligation to pay child support;

(d)he rejects Ms S’ claims that he can afford to pay further maintenance or the arrears in terms of the original United Kingdom provisional order;

(e)but makes it clear he has his commitment to provide support for the child which he said is illustrated by his payment of maintenance as ordered and the recognition of his birthday and Christmas.

[41]   Ms S on the other hand alleges that matters have now come to her attention which were not put before the Family Court, including the fact that Mr S and his wife may own another property. She says the Judge erred in his finding that there was a shortfall in relation to income for the respondent’s family. She also says Mr S had never been told that he had been relieved of an obligation to pay future periodic maintenance toward the child.

[42]   As is apparent Ms S is contesting the finding of the facts made by the Judge on the basis of evidence she says she has discovered.

[43]   However, there appears to be no reason why this evidence was not put to Mr S and provided to the Judge at the time of the hearing. Ms S was represented, albeit it seems counsel was funded and apparently liaised directly with the central authority. Nevertheless, Ms S was the applicant and was represented. It appears that she had contact with Ms Pearce as well.

[44]   The evidence that Ms S now refers to is not fresh and no doubt if the matter went to appeal an application for leave to adduce further evidence would be necessary in order for Ms S to adduce the material that she says she will rely upon in the appeal. This would lead to further delays.

[45]   At the Family Court hearing Mr S was cross-examined about his financial circumstances. It appears that was a focus of the hearing and it is clear from the submissions of the applicant which were filed in writing in the Family Court that at

the fore of the hearing would be the issues concerning Mr S’s financial circumstances. In particular there is a reference by counsel in her submissions in the Family Court15 to the detail of Mr S’s financial circumstances being able to be explored in cross- examination at the hearing.

[46]   Mr S confirmed that he was cross-examined for about 45 minutes at the hearing by counsel for the applicant. He also confirmed that he produced financial records including his bank statements.

[47]   The two main areas that Ms Lewes emphasised would be addressed in the appeal and which underscored the merits of the appeal related to, first, whether or not Mr S and his partner in fact owned another property which the Judge was not aware of and, secondly, some issues about whether the amount of Mr S’s income and that of his partner was correctly before the Court. Ms  Lewes  also  pointed  out  that  in New Zealand if Mr S and his partner’s income was fed into the Inland Revenue Department calculator the outcome would have been a substantially higher maintenance figure than the Family Court Judge determined in his decision.

[48]   However, I note as I have mentioned earlier that the Family Court was well aware of the outcome of the IRD maintenance calculation. I note that it is a matter supposition as the full maintenance form for the calculation had not been produced, as Mr S pointed out.

[49]   In my view given the substantial amount of time that has elapsed before the appeal was lodged or that Mr S was alerted to an appeal it there is resultant prejudice. This is apparent given the financial circumstances of the respondent and his family. He has 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. He has not been evading his obligations in that behalf.

[50]   Ms Lewes’ submission that there was no prejudice because Mr S had financial obligations to the child which he needed to meet is correct. However, it was the established quantum of the financial obligation that he relied upon and if that was

15     At paragraph 19 of the applicant’s submissions of 17 May 2019.

revisited he would be substantially prejudiced in view of the delay in lodging the appeal.

[51]   As I noted Mr S stated that he wanted to reiterate that he was committed to the child’s well-being and support and he has been paying the maintenance as ordered. Mr S also pointed to prejudice in relation to  the  legal  costs  incurred  in  the  Family Court hearing which he said was substantial. He said he would need to brief counsel to appear at any appeal of the matter if it proceeded to appeal. Nevertheless, he would have had to have done that if the appeal had been filed within the appeal time.

[52]   However, I do consider the delay has led to prejudice which militates against the granting of leave to appeal.

[53]   In my view even accepting that part of the delay might be explained by Ms S not receiving notice of the judgment and the lengths she went to get a lawyer, it does not fully explain the substantial delay in this case.

[54]   I note that in most of the authorities, cited to me by the appellant concerning leave being granted for an extension of time to appeal, the delay was counted in days or even, in one case, just over three months. However, in this case the delay was 15 to 18 months. This is a substantial amount of time particularly given that Mr S was relying on the Family Court order to order his financial affairs in that period.

[55]   My findings on the issue of delay and prejudice, weigh against the granting of leave to appeal, however, I am also of the view that the merits of the case are not strong.

[56]   This will be a general appeal against the findings of the Judge in a situation where the Judge heard evidence, the applicant was represented at the hearing, cross- examination was undertaken, and the Judge made a careful consideration of the material before him.

[57]   It is apparent from the bank statements produced to the Family Court that there were two mortgage outgoing payments. These were clearly brought to the attention of the Judge so he was well aware of what the outgoings were. Whether or not the Judge was specifically referred to another house property or not is not clear. Nevertheless, it appears from the evidence he was aware of the outgoings on two mortgages. There was the opportunity at the hearing for that evidence to be tested, for Mr S to be cross-examined and submissions to be made. In this case it is apparent that the introduction of fresh evidence would add further delay to the already substantial delay that has been attendant in this matter. The evidence is neither fresh nor compelling in the circumstances.

[58]   Accordingly, on the grounds of undue delay and prejudice to the respondent the application for leave to extend time to appeal is dismissed.

Costs

[59]   Ms S, Ms Lewes confirmed, is on legal aid. No order for costs may be made against a legally aided person in a civil proceeding unless this Court is satisfied that there are exceptional circumstances.16

[60]   Furthermore, Mr S did not instruct counsel and therefore would not be entitled to legal costs, but only disbursements.17

[61]   Mr S did address me on costs. He noted that he had to take off two days of work to deal with this matter and had incurred some disbursements but he did not strongly pursue these. He indicated he wanted this matter dealt with without further delay.

[62]   In any event, I find this matter is not exceptional. I conclude there should be no order for costs or disbursements in the circumstances.

16     Legal Services Act 2011, s 45(2).

17     McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335.

Grice J

Solicitors:

Main Street Legal Ltd, Upper Hutt