Wootton v Wootton

[2008] NZCA 340

IN THE COURT OF APPEAL OF NEW ZEALAND

CA460/2008
CA461/2008
[2008] NZCA 340

BETWEENMARGARET ANN WOOTTON

Applicant

ANDPHILLIP GARRY WOOTTON

Respondent

Hearing:12 August 2008

Court:Glazebrook, O'Regan and Robertson JJ

Counsel:Applicant in person

E J Collins for Respondent

Judgment:2 September 2008 at 3 pm

JUDGMENT OF THE COURT

A        LEAVE TO APPEAL IS REFUSED DUE TO LACK OF JURISDICTION IN CA460/2008.

B        An application for a stay in CA461/2008 is refused.

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REASONS OF THE COURT

(Given by Robertson J)

[1]       CA460/2008 was an application described as being for leave to appeal under s 174(1AA) of the Family Proceedings Act 1980 (“the Act”) dismissing an order made in the Family Court on 10 June 2008 dissolving the marriage between the two parties to this application.  The application for leave was sought under s 174(5) of the Act.

[2]       We are satisfied that leave cannot be granted as there is no jurisdiction.

[3]       The order dissolving the marriage was made on 10 June 2008.  The notice of appeal was filed in the High Court at Wellington on 11 July 2008.

[4]       Section 42 of the Act provides the jurisdiction for dissolving a marriage.  Under s 42(2), there is an appeal to the High Court under s 174 of the Act.  The section does not specifically confer a right of appeal and therefore s 174(1AA) applies, and the right to appeal under s 174(1) arises. 

[5]       Section 174(1A) applies the High Court Rules and the relevant provisions of the District Courts Act 1947.  Times for appealing are fixed under r 704.  There is no period specified in the Act and therefore, under r 704(2), the time for appealing is within 20 working days.

[6]       Generally, r 704(3) allows the Court to extend time, but that is specifically excluded by s 174(4) of the Act.

[7]       Mrs Wootton’s application was filed outside the 20 working day period.

[8]       When this problem was brought to the attention of Mrs Wootton in the High Court, she sought to amend her proceeding to commence the appeal as one under Part 11 of the High Court Rules.  By reference to r 5, she sought an amendment to permit the appeal to be brought under that part.

[9]       MacKenzie J was correct when he found that the appeal as filed was out of time and that there was no jurisdiction to extend time.  There was nothing which could be amended.

[10]     Part 11 of the High Court Rules, even if it had been initially invoked, would not have been available in these circumstances.  This was not a case stated for an opinion of the Court.

[11]     A number of issues relating to the evidence heard in the Family Court and the subsequent acts and omissions of (and alleged against) the parties were raised, but they cannot alter the jurisdictional position.

[12]     Leave to appeal is accordingly refused for lack of jurisdiction.

[13]     The application for a stay (CA461/2008) must, as a consequence, be refused.

Solicitors:

Collins & May, Lower Hutt, for Respondent