W v Y

[2023] NZHC 3091

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://

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2392

[2023] NZHC 3091

BETWEEN

W

Appellant

AND

Y

Respondent

Hearing:	On the papers
Judgment:	3 November 2023

JUDGMENT OF MUIR J

This judgment was delivered by me on 3 November 2023 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

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

W v Y [2023] NZHC 3091 [3 November 2023]

Introduction

[1]                 Mr W has filed a notice of appeal, dated 13 October 2023. He seeks to appeal two decisions of the Family Court: a decision of Judge Duggan, dated 22 September 2023, and a decision of Judge Partridge, dated 25 September 2023. The decisions relate to an ongoing dispute between Mr W and Ms Y in regard to the day-to-day care of their two children.

[2]                 The proceeding has been referred to me by the Registrar under r 5.35A of the High Court Rules 2016 for consideration under r 5.35B, which provides for the Court to give directions if satisfied that the proceeding is plainly an abuse of process.

[3]                 The notice of appeal is discursive and, in my view, patently defective. I consider that reference under r 5.35A was appropriate and that the jurisdiction under r 5.35B is engaged.

Decision of Judge Duggan

[4]                 On 22 September 2023, Judge Duggan made a  guardianship direction under s 46R of the Care of Children Act 2004 ordering that the parties’ children may participate in counselling.1

[5]                 Mr W subsequently applied to Judge Duggan for leave to appeal the guardianship direction. The Judge indicated, correctly, that her leave was not required. Instead, s 143(2) of the Care of Children Act stipulates that the leave of the High Court is required to bring an appeal against a s 46R proceeding. No such application has been made. On that basis, I make an order staying the appeal against the guardianship direction until such time as an application for leave is filed.2 Such application for leave should briefly identify why the intended appeal on the specific decision (i.e. the counselling direction) has merit. There is nothing in the existing (defective) notice of

1      The direction was confirmed in a minute of Judge Duggan dated 25 September 2023. A sealed order, dated 4 October 2023, is on file.

2      A proceeding which lacks jurisdiction (for example, where there is no jurisdiction to entertain the appeal without leave) is prima facie a plainly abusive proceeding: see Simeon v Chief Executive of Oranga Tamariki [2021] NZHC 2614; and Re Brown [2021] NZHC 3257. Nevertheless, I do not intend to strike out the appeal. If proper grounds for leave can be made out, an order could subsequently be made identifying them as the grounds for the substantive appeal and the two heard together (if appropriate).

appeal which addresses this issue. Rather, the existing document simply rehearses a long litany of complaints against Ms Y and the courts.

Decision of Judge Partridge

[6]On 22 September 2023, Mr W filed without notice applications for:

(a)a parenting order;

(b)an order preventing  the  removal  of  the  parties’  children  from  New Zealand;

(c)admonishment of Ms Y; and

(d)leave to file a further affidavit in the parties’ substantive proceeding.

[7]                 In a minute dated 25 September 2023, Judge Partridge declined leave to file further evidence on the basis that the affidavit contained nothing new or could “be produced at hearing”. In relation to the balance of the applications, the Judge similarly said that they were “declined”. But she went on to say, “[t]here is no evidence to support the orders sought being made on a without notice basis” and directed that they be dealt with within the context of existing “long cause fixtures”.

[8]                 All these decisions constitute interlocutory or  interim orders.   Pursuant  to    s 143(3) of the Care of Children Act, an appeal can be brought only with the leave of the Family Court. Without it this Court does not have jurisdiction to entertain the appeal.

[9]                 On 2 November 2023, Mr W filed a copy memorandum from Judge Partridge stating that Mr W “does not require leave to appeal my decision … declining his without notice applications” and that he has the “inherent right to do so”. That may have been the case if the applications had been dismissed in substance, but apart from the ruling in relation to the further affidavit (itself clearly interlocutory), that is not what the Judge did. Rather, she simply directed that they be heard (effectively on notice) in tandem with the other outstanding issues. Her direction in that regard was

an interlocutory one within the context of s 143(3). I do not therefore agree with the Judge’s conclusion about an “inherent right” to appeal. Leave was required and, in its absence, the current appeal before me is without jurisdiction. Accordingly, I exercise my discretion to strike it out under r 5.35B(2)(a). In the event the Family Court grants leave, it can be re-prosecuted.

Result

[10]             The appeal against Judge Duggan’s decision, dated 22 September 2023, is stayed pending a formal application for leave to appeal.

[11]             The appeal against Judge Partridge’s decision, dated 25 September 2023, is struck out.

[12]             Pursuant to r 5.35B(3), Mr W is informed of his right to appeal against this decision.

[13]A copy of this decision is to be provided to Judges Duggan and Partridge.

Muir J