Wade v Wade
[2023] NZHC 2383
•29 August 2023
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); and
(b)is to be commenced less than 2 years after the final direction or order was given in the previous proceeding.
(2)The leave of the court may only be given under subsection (1) if, since the final direction or order was given in the previous proceeding, there has been a material change in the circumstances of—
(a)any party to the previous proceeding:
(b)any child who was the subject of the previous proceeding.
2 [Wade] v [Wade] [2022] NZHC 2265.
3 At [50].
4 Wade v Wade [2022] NZHC 3254.
(3)In this section, a new proceeding is substantially similar to a previous proceeding if—
(a)the party commencing the new proceeding was a party to the previous proceeding; and
(b)a child who is the subject of the new proceeding was the subject of the previous proceeding; and
(c)the new proceeding—
(i) is commenced under the same provision of this Act as the previous proceeding; or
(ii) is for an order varying the order made in the previous proceeding; or
(iii) is for an order discharging the order made in the previous proceeding.
(4)This section does not apply if every party to the new proceeding consents to its commencement.
[4]In declining leave under this section Judge Moss said:5
In this case, had I considered the matters raised by the mother in her application of 24 March 2023 related to what she regarded as capricious refusals by the father to adjust the state of the contact, I am confident that I would not have changed my point of view. Sadly, over the course of the litigation the Court has been able to perceive a substantial change in the approach of the father, derived in part from the therapeutic work the children were able to do, but in large part from the therapeutic work the father was able to do. I was at the time hearing, and remain confident that the father has a fine- grained appreciation of the children’s needs. Sadly, reflecting on the part the mother has played in the litigation, and the complexity of her expectations on her children (in particular April 2020) and of her appreciation of her own contribution to the complexities, I cannot say with the same confidence that the mother’s approach reflects an appreciation of the boys needs external to her own. This is no change.
I do not consider the matters raised in the mother’s application of 24 March to be material. Leave is therefore declined.
[5] The appellant now seeks to appeal from this decision. The respondent says that she may not do so unless she has sought and obtained leave from the Family Court. The relevant rights of appeal are set out in the following way in the Act:
5 [Wade] v [Wade], above n 1, at [40]–[41].
143 Appeals to High Court
(1)This subsection applies to a decision of the Family Court or District Court, in proceedings under this Act (other than criminal proceedings), to—
(a)make or refuse to make an order (other than an interlocutory or interim order); or
(b)dismiss the proceedings; or
(c)otherwise finally determine the proceedings.
(2)A party to proceedings in which there is made a decision to which subsection (1) applies, or a child to whom those proceedings relate, may appeal to the High Court against the decision. However, if the proceedings are under section 46C or 46R, the party or child may appeal only with the leave of the High Court.
(3)A party to proceedings under this Act in the Family Court or District Court in which an interlocutory or interim order is made, or a child to whom those proceedings relate, may, with the leave of the Family Court or District Court (as the case requires), appeal to the High Court against the order.
(3A) However, no appeal may be made to the High Court under subsection
(3) in relation to—
(a)any interlocutory or interim order made in the following kinds of proceedings:
(i) criminal proceedings; or
(ii) proceedings under section 46C; or
(iii) proceedings under section 46R; or
(b)a decision under—
(i) section 7 to appoint, or to direct the Registrar of the court to appoint, a lawyer to represent a child; or
(ii) section 130 to appoint, or to direct the Registrar of the court to appoint, a lawyer to assist the court; or
(iii) section 133 to obtain a written cultural report, medical report, psychiatric report, or psychological report.
…
[6] There is no definition of “interlocutory order” in COCA, but there is a definition of interlocutory application in r 8 of the Family Court Rules 2002, and given that COCA was passed two years later it can be legitimately considered to be of
assistance in identifying what Parliament would have contemplated as an interlocutory order:6
interlocutory application—
(a)means an application in proceedings or intended proceedings for an order or a direction relating to a matter of procedure or for some relief ancillary to the orders or declarations sought in the proceedings or intended proceedings; and
(b)includes—
(i) an application for a rehearing; and
(ii) an application to review an order made, or a direction given, on an interlocutory application
[7] Ms Whelan for the respondent submits that the appellant’s application was in the nature of an application for an interlocutory order, particularly as s 139A gives the Family Court a gatekeeping role to ensure matters are not endlessly relitigated. She relies on two decisions of the High Court, Roche v Jansen and Snell v Snell where the High Court has concluded that decisions under s 139A are interlocutory decisions, and that leave from the Family Court is required.7 A similar conclusion was also reached in FJFB v TW.8
[8] Mr LaHatte argued that this was not an interlocutory order because it finely determined new proceedings concerning care of children matters. He relied on the decision of the High Court in Kibble v Lambda which interpreted the leave requirement in s 143 as applying only to procedural or interlocutory matters and not to orders that substantively determine proceedings.9
Assessment
[9] Although different analytical pathways have been adopted in the decisions which have concluded that there is no right of appeal to the High Court from decisions under s 139A of COCA, I agree with the conclusions reached in those decisions. It is
6 See Wade v Wade, above n 4, at [25]; Interfreight Ltd v Police [1997] 3 NZLR 688 at 692 (CA); Off Road New Zealand (1992) Ltd v Machinery Inspector [2019] NZHC 1996, [2019] NZAR 1712 at [59]–[60].
7 Roche v Jansen [2017] NZHC 207; Snell v Snell [2021] NZHC 953.
8 FJFB v TW [2015] NZHC 2129, (2015) 30 FRNZ 330.
9 Kibble v Lambda [2016] NZHC 1832.
more consistent with the scheme and purpose of the COCA for leave of the Family Court to be required before the party may pursue an appeal. For that reason I consider the decision of the Family Court under s 139A is an interlocutory order for the purpose of s 143.
[10] The rights of appeal set out by Parliament in s 143 are very carefully formulated. Some decisions may be appealed as of right. Others required leave of the High Court, and yet others require leave of the Family Court. There are then exceptions to the circumstances where leave may be granted. Moreover, when leave is required of the Family Court, there are no provisions that contemplate the High Court considering granting leave when the Family Court does not. This is plainly a very carefully formulated appeal regime.
[11] It is also clear that the purpose of restricting the rights of appeal, and for the existence of leave requirements, is to prevent the proliferation of litigation that can be contrary to the best interests of the child. The rights of appeal in s 143 sit alongside other provisions that show this evident purpose. Section 140 gives the Court a power to dismiss proceedings because their continuation is clearly contrary to the welfare and best interests of the child. Section 141 then allows the Court to make an order preventing new proceedings without leave. And s 139A itself is part of the same group of provisions. It prevents substantially similar proceedings being commenced within two years without leave of the Family Court.
[12] Given there is no prescribed definition of what is an “interlocutory order” in s 143 its meaning needs to be interpreted in light of the purpose in so restricting litigation rights. Given this purpose I do not consider it would have been intended by Parliament that a decision under s 139A declining leave for a participant to relitigate substantially similar proceedings should be able to be appealed as of right to the High Court. That would undermine the purpose of preventing the proliferation of proceedings in accordance with the carefully designed restrictions. Judicial control over such further litigation was intended. That is essentially the view formed by Edwards J in Snell v Snell, and I agree with it.10
10 Snell v Snell, above n 7, at [13].
[13] The contrary view of Palmer J in Kibble v Lambda is perhaps best captured in the following paragraph:11
If the decision were characterised as an interlocutory application the substantive outcome of the new proceeding would not be able to be appealed as of right. That seems to me to be antithetical to the purpose of s 143(1) in distinguishing between interlocutory or interim orders, which require the leave of the Family Court to be appealed, and decisions which “finally determine” proceedings, which can be appealed as of right.
[14] I disagree with this view. Parliament intended to control the initiation of new proceedings through a leave requirement. Although the declining of that leave could be said to finally determine new proceedings on the literal meaning of those words, there is a contrary view — in FJFB v TW Ellis J held that an application for leave was not itself a proceeding that was being finally determined.12 And when seen in context of the overall scheme and purpose of these provisions the decision of the Family Court is the type of decision that should be subject to a leave requirement before an appeal can be pursued. For that reason the decision of the Family Court is best understood to be an interlocutory order.
[15] The consequence is that leave of the Family Court must be sought and obtained for any appeal from a decision of the Family Court under s 139A. There is also no ability of the High Court to grant that leave if the Family Court does not. There is the possibility of judicial review challenges to decisions of the Family Court declining leave. But as the Court of Appeal said in Newton v Family Court at Auckland judicial review will not be permitted when it is pursued in a way that circumvents the restrictions imposed on rights of appeal as judicial review “… is intended to ensure fidelity to the statutory scheme, not to undermine it”.13 The High Court has accordingly struck out judicial review proceedings when they have been pursued in a way that is inconsistent with the limitation on the rights of appeal.14 Judicial review would only be permitted if there was some fundamental error that warranted the intervention of the Court notwithstanding the regime created by the COCA.15
11 Kibble v Lambda, above n 9, at [32].
12 FJFB v TW, above n 8, at [14].
13 Newton v Family Court at Auckland [2022] NZCA 207, [2022] NZFLR 102 at [6].
14 Fox v Fox [2022] NZHC 2834; Larsen v Family Court [2023] NZHC 395 at [14]–[19].
15 Larsen v Family Court, above n 14, at [20].
Outcome
[16] For these reasons I agree with the submissions for the respondent that the appellant had no right of appeal to the High Court, and that leave of the Family Court was required before any such appeal could be pursued. For these reasons the current appeal is dismissed as being without jurisdiction.
[17] The respondent will be entitled to 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.
Cooke J
Solicitors:
Ord Legal, Wellington for the Appellant
Wilkinson Rodgers, Dunedin for the Respondent
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