W v Y

[2023] NZHC 3413

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 https://www.justice.govt.nz/family/about/restriction-on-publishing- judgments/

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2392

[2023] NZHC 3413

UNDER

The Care of Children Act 2004

IN THE MATTER

of an appeal of decision re order preventing removal of Children FAM 2020-044-000432

BETWEEN

W

Appellant

AND

Y

Respondent

Hearing:

28 November 2023

Appearances:

Appellant in person

T Hack for Respondent

Judgment:

28 November 2023

JUDGMENT OF MUIR J

[Re: Application for leave to appeal guardianship direction]

This judgment was delivered by me on 28 November 2023 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Schumacher Law, Auckland

W v Y [2023] NZHC 3413 [28 November 2023]

Introduction

[1]                  On 25 September 2023, Judge Duggan made a guardianship direction that the children of Mr W and Ms Y “may participate in counselling”. Mr W subsequently sought to appeal that direction. The appeal was referred to me by the Registrar under r 5.35A of the High Court Rules 2016. Pursuant to r 5.35B(2), I stayed the appeal pending filing of an application for leave to appeal.1 Mr W has now filed the required application, which I determine in this judgment.

Decision of Judge Duggan

[2]His Honour’s decision is set out below in full:

The children may participate in counselling for them individually (or as a group, depending on whether that is recommended by the counsellor) to help them address any issues relating to their parents’ dispute about their parenting arrangements and the conflict that they have been exposed to.

While it is unusual to direct/authorise counselling on a without notice basis, this situation is unusual. The respondent has previously agreed to participate in ‘families in transition’ counselling but has withdrawn his consent it seems on at least two occasions. Counselling/therapeutic support for one or more of the children has been recommended by the court appointed, s 133, report writer and is clearly supported by their lawyer. There is funding available for the therapy and, while it is not clear if she is still available, previously a psychologist was available. It may be that a further psychologist/counsellor will need to be approached however.

As the final hearing is 10 months away, it is important that the children have access to support now. The therapy will not be able to involve Mr [W] unless that is something that he subsequently (again) confirms that he will participate in.

The clear risk of hardship to the children of not having access to therapeutic support justifies making this guardianship direction on a without notice basis.

Submissions

[3]The grounds of the application for leave to appeal are as follows:

… the Care of Children Act 2004 states that [it is] in the best care and interests of the children [that] the children should spend equal amounts of time with both parents. This is not happening at this time and it is clear that the children need to spend more time with their father who only gets to spend 1½ hrs with the children per week. The North Shore Family Court states it is acting in the

1      W v Y [2023] NZHC 3091.

best interests and care of the children and therefore should comply with the Care of Children Act 2004. More time spent with their father is the best therapy not more time with strangers!

[4]                  The application is opposed by Ms Y on the ground that Mr W does not provide any adequate reason as to why the decision should be appealed and on the further ground  that  the   order   operates   in   an   interim   sense   and   that,   pursuant  to s 143(3A)(a)(iii) of the Care of Children Act 2004, no appeal can be made to the High Court.

[5]                  At the hearing of the application, Mr W reiterated his long-running concerns with the Family Court’s interim orders, his inability to have proper contact with his children and what he says were the falsities by which Ms Y persuaded the Family Court to make interim orders in her favour. His underlying proposition remains that what the children require is further contact with their father, not counselling.

Discussion

[6]                  Mr W seeks to support his application for leave to appeal the guardianship direction by a tangential link to his overarching concerns about the Family Court’s interim orders. This is reflected in  his  stated  grounds  in  his  application  for  leave: “More time spent with their father is the best therapy not more time with strangers!” However, he fails to identify why, if his claim to greater access were ultimately to be upheld, this could not be accommodated in addition to periodic counselling sessions. Nor does he identify why (given that existing care arrangements will continue to apply unless or until varied), the children should not have the benefit of counselling in the interim.

[7]                  In my view, there is, within the context of the many pressures of scarce judicial resource, insufficient potential merit in the appeal to warrant a grant of leave. Leave provisions generally provide a gateway through which unmeritorious appeals can be filtered. In my view, an appeal against an order that children may attend counselling based only or primarily on the proposition that they should be spending that time with their father, falls into that category.

[8]                  I  need  not,   in   that   context,   address   Ms  Y’s   secondary   point   under s 143(3A)(a)(iii).

Result

[9]The application for leave to appeal is declined.

[10]The formerly stayed appeal is dismissed.

Muir J