W v W HC WN CIV 2008-485-1526

[2008] NZHC 2437

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2008-485-1526

IN THE MATTER OF     The Family Proceedings Act 1980 S.174

1AA

BETWEEN  W Appellant

ANDW Respondent

Hearing:         28 and 30 July 2008

Appearances: Appellant in person

Respondent in person

Judgment:      30 July 2008 at Oral

ORAL JUDGMENT OF MACKENZIE J

[1]      This is an appeal against an order of the Family Court, made on 10 June

2008, dissolving the marriage between the parties.  The Notice of Appeal was filed on 11 July in this Court.  That was a Notice of Appeal under Part 10 of the High Court Rules.  When the matter was called in the Chambers List on Monday, for a first case management conference, I raised the question of whether the appeal had been filed within time and I set out in a Minute the reasons for that.  I adjourned the matter to this morning to enable the appellant, who was not legally represented, an opportunity to obtain legal advice.  She has sought an extension of time but I have indicated that I am not prepared to adjourn this matter any further to enable legal advice to be obtained.

[2]      She has also sought to amend the proceedings to commence the appeal as an appeal under Part 11 of the High Court Rules and has sought to invoke r 5 of the

High Court Rules in allowing an amendment to permit the appeal to be brought

W V W HC WN CIV 2008-485-1526  30 July 2008

under Part 11.  I am satisfied that the appeal as filed is out of time, that there is no jurisdiction to extend time, and that there is accordingly no valid appeal before this Court and so the possibility of amending that appeal does not arise.  I set out now the reasons for that conclusion.

[3]      An order dissolving a marriage is made under s 42 of the Family Proceedings Act 1980.  Section 42(2) allows for the possibility of an appeal to the High Court under s 174 of the Act.  Section 174 clearly does confer a right of appeal against the order dissolving the marriage.  The order is one to which s 174(1AA) applies and the right of appeal in s 174(1) is accordingly conferred.   Section 174(1A) applies the High Court Rules and the relevant provisions of the District Courts Act 1947.  That application of the High Court Rules necessarily involves Part 10 of the High Court Rules, and the time for appeal is fixed by r 704.   Under r 704(2), there being no specific period specified in the Family Proceedings Act, the time for appealing is within 20 working days after the decision appealed against is given.   Ordinarily r 704(3) enables the Court to extend the time for appealing.  However, that provision is clearly excluded by s 174(4) of the Family Proceedings Act which provides that the High Court shall not extend the time for appeal against an order dissolving a marriage or civil union.  The present appeal was filed more than 20 working days after the making of the order and accordingly there is no valid appeal before this Court and this Court cannot extend time to give the appeal validity.

[4]      Rule 5, which provides that a failure to comply with the requirements of the rules in respect of, among other matters, time, shall be treated as an irregularity and shall  not  nullify  the  proceeding,  must  be  subject  to  the  express  provisions  of s 174(4).

[5]      The matter is not able to be rectified by bringing the appeal within Part 11. Under r 719, Part 11 applies to an appeal by way of case stated for the opinion of the Court on a question of law only, or any other reference to the Court by way of case stated for an opinion of law pursuant to any Act.  That is a specific provision which deals with cases where an inferior Court has stated a case for the opinion of this Court.  It does not apply to a general appeal which is lodged pursuant to s 174 of the Family Proceedings Act.   There is no question of law identified in the decision

which could be made the subject of a Part 11 appeal.  It is not possible to convert the out of time Part 10 appeal into a Part 11 appeal.  The outcome is, and must be the only possible outcome, that this appeal must be struck out as being out of time.

[6]      The outcome is clearly one which from the appellant’s position is unfortunate and unsatisfactory.  It is in those circumstances desirable that I say something about the reasons why the rule is as strict as it is in relation to the time for bringing an appeal.  I have explained this in the course of argument but I record it here.

[7]      An  order  dissolving  a  marriage  is  an  order  which  affects  status.    It  is accordingly important that there be certainty.   Certainty of status is an important aspect and the legislative provisions as to appeals have clearly been drafted with the need for certainty in mind.   Section 42(1)(b) provides that an order dissolving a marriage takes effect as a final order at the expiration of one month from the date on which it is made.  Subsection 2 defers the effect as a final order, where an appeal is lodged, until the appeal is disposed of.  But if no appeal is lodged within the time provided then the order becomes final, the change in status is effected and it cannot be undone.   That is the reason why the apparently harsh provision in s 174(4) is necessary.  It is necessary to provide certainty as to status.

[8]      Accordingly, there will be an order that the appeal be struck out as out of time and accordingly this Court has no jurisdiction to entertain it.

“A D MacKenzie J”