Wade v Wade - [2023] NZHC 2383

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. SEE FOOTNOTE 1 BELOW.

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2023-454-063

[2023] NZHC 2383

UNDER the Care of Children Act 2004

BETWEEN

WADE

Appellant

AND

WADE

Respondent

Hearing: On the papers

Appearances:

J C LaHatte and J C R Cooper for the Appellant T Whelan for the Respondent

Judgment:

29 August 2023

JUDGMENT (NO 2) OF COOKE J

(Jurisdiction to appeal)

[1] By notice of appeal dated 14 August 2023 the appellant seeks to appeal from the decision of the Family Court declining her leave to bring new proceedings under s 139A of the Care of Children Act 2004 (COCA).1 When the appeal was called before me in the Judge’s Chambers List on 21 August counsel for the respondent indicated that, in her view, the appeal was invalid as leave to appeal from the Family Court was required, and this had not been sought or granted. I decided that this issue needed to be addressed as a preliminary issue, and the parties then agreed that it could be determined on the papers following the filing of written submissions which have now been received.

1 [Wade] v [Wade] [2023] NZFC 8162. These are not the parties true names.

WADE v WADE [2023] NZHC 2383 [29 August 2023]

Background

[2] These are long standing proceedings involving the care of the parties’ children. A final parenting order was made by the Family Court on 23 August 2021. This provided the respondent with day to day care, and the appellant with contact once a fortnight. The appellant unsuccessfully appealed against the costs orders then made against her, but the final parenting order itself was not appealed.2 When dismissing the appeal of the costs award Gendall J said:3
Even accepting that Ms [Wade] does genuinely believe she was acting in the best interests of the children, here significant reasons for the approach taken by the highly-experienced Family Court Judge in this case, Judge Moss, and her conclusions that Ms [Wade] is acting far from reasonably here, are apparent from all the material before the Court.

[3] Later decisions were made varying the parenting orders, and these were unsuccessfully appealed by Ms Wade.4 On 24 March 2023 the appellant then filed an application for leave under s 139A of COCA so she could make an application to vary the final parenting order to allow for increased contact with her children. That section provides:

139ALeave required in certain cases to commence substantially similar proceedings

(1)A proceeding (a new proceeding) may not be commenced under section 46R, 48, or 56 without the leave of the court if that new proceeding—

(a)is substantially similar to a proceeding previously filed in the Family Court by any person (a previous proceeding);…

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 Wade v Wade

Details

AGLC: Wade v Wade [2023] NZHC 2383
Case: [2023] NZHC 2383
Decision Date: 29 August 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Wade v Wade revolved around a long-standing dispute concerning the care of the parties' children. The final parenting order was made on 23 August 2021, granting the respondent day-to-day care and the appellant contact once every fortnight. The appellant had previously appealed the costs orders but did not challenge the final parenting order. The appellant subsequently sought leave under section 139A of the Care of Children Act 2004 to commence new proceedings for increased contact with her children, which the Family Court declined. The appellant sought to appeal this decision directly to the High Court.

The primary legal issue in this case was whether the appellant could appeal the Family Court's decision to the High Court without first obtaining leave from the Family Court, as required by section 143 of the Care of Children Act 2004. The appellant argued that the decision was not interlocutory and could be appealed as of right, while the respondent contended that the decision was interlocutory and required leave from the Family Court to be appealed.

The court held that the decision under section 139A of the Care of Children Act 2004 was indeed interlocutory. The court reasoned that the purpose of the Act is to prevent the proliferation of litigation contrary to the best interests of the child, and this purpose is best achieved by requiring leave from the Family Court before an appeal can be pursued. The court agreed with previous High Court decisions that decisions under section 139A are interlocutory and require leave from the Family Court. Therefore, the appeal was dismissed as being without jurisdiction.

In conclusion, the High Court dismissed the appeal as it lacked jurisdiction, as the appellant had not obtained the required leave from the Family Court to appeal the Family Court's decision. The respondent was awarded costs on a 2B basis for responding to the appeal, appearing in the Judge’s Chambers List, filing a memorandum in advance of that appearance, and then filing submissions in support of an interlocutory application.

Orders