YS v DS
[2014] NZHC 2840
•13 November 2014
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-1246 [2014] NZHC 2840
BETWEEN YS
Appellant
AND
DS Respondent
Hearing: 7 August 2014 Appearances:
YS for herself
M N Tolich and A L Norcross for Respondent
P L Singh Lawyer for ChildJudgment:
13 November 2014
JUDGMENT OF PETERS J
This judgment was delivered by Justice Peters on 13 November 2014 at 3 pm pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: Corban Revell, Henderson
Counsel: P L Singh, Auckland
Copy for: Appellant
YS v DS [2014] NZHC 2840 [13 November 2014]
[1] The Appellant appeals against a judgment of Judge de Jong in the Family
Court at Waitakere, given orally following a hearing on 29 April 2014.1
[2] I set out the orders the Judge made below but they concerned applications by both parties in respect of their child for orders pursuant to Care of Children Act 2004 (“COCA”). The Appellant appeals against each of these orders.2 I heard from her, counsel for the Respondent and lawyer for the child.
Right of appeal
[3] The Respondent submits that there are procedural impediments to the Appellant’s proposed appeal, arising from s 143 COCA. The essence of the submission is that in some instances the Appellant requires leave to appeal and, in others, that she simply has no right of appeal.
[4] Section 143 does have the effect of precluding appeals against some orders or, in others, requiring an appellant first to obtain leave to appeal. Section 143 was amended with effect from March 2014 and, as amended, provides:
143 Appeals to High Court
(1) This subsection applies to a decision of a Family Court ... in proceedings under this Act ... 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 ... may appeal to the High Court against the decision. However, if the proceedings are under section 46C or 46R, the party ... may appeal only with the leave of the High Court.
(3) A party to proceedings under this Act in a Family Court … in which an interlocutory or interim order is made ... may, with the leave of the Family Court ... 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:
...
(iii) proceedings under section 46R; or
...
(4) The High Court Rules and sections 73 to 78 of the District Courts Act 1947, with all necessary modifications, apply to an appeal under this section as if it were an appeal under section 72 of that Act.
...
[5] I shall address the effect which s 143 has on the appeal in the context of the appeal against each of the Judge’s orders. One immediate issue, however, is that s 143 permits an appeal only against a decision falling within s 143(1). The points raised in the Appellant’s notice of appeal and submissions extend well beyond matters determined by Judge de Jong. For instance, the Appellant has alleged
breaches of the Family Court Rules by Court staff;3 has alleged that the
Respondent’s legal advisers have brought proceedings at the behest of a medical doctor;4 and has made a request for a pathologist’s report pursuant to s 27 Coroners Act 2006 if the child should die.
[6] I do not have jurisdiction to hear any appeal on such matters and confine this judgment to the orders that the Judge did or did not make, as the case may be.
Background
[7] The Appellant and Respondent are parents (mother and father respectively) to a son born in April 1999. The Appellant believes that the child is gravely unwell and that he requires comprehensive medical treatment. Neither the Respondent nor lawyer for the child share this belief.
[8] On 28 March 2013, Judge McHardy made a final parenting order (“parenting order”) granting day to day care to the Respondent, subject to two conditions (“conditions”):5
(a) that the child not be subjected to non-urgent medical treatment and procedures without the consent of both parents; and
(b)that the child not be subjected to conversations about their medical health except when medical treatment had been agreed to or was required for reasons of urgency.
[9] At the conclusion of his judgment, Judge McHardy also ordered:
[36] ... There [are] to be no further applications made to this Court in relation to [the child] without leave of the Court. ...
[10] In July and August 2013 the Appellant filed the following applications, and applications for leave to make the same:
(a)
(b)
for variation or discharge of the parenting order and other orders;
for children’s medical emergencies guardianship applications to the
Family Court (sic); and (c)
for charge for contravening parenting order (sic).
[11]
applic
On ation
15 August 2013 the Respondent filed applications, together with s for leave:
(a)
for the Court’s direction as to the exercise of guardianship (medical
treatment) pursuant to s 44 COCA regarding surgery to the child’s
nose, which had been broken some years earlier. Section 44 was
repealed with effect from 31 March 2014 but it made provision for the Court to give directions as to a matter in dispute between guardians. Broadly equivalent provision is now made in s 46R; and 5 DAS v YDSS [2013] NZFC 2510, at [35] - [36].
(b)for costs.6 The Judge reserved the matter of costs and it is unnecessary for me to say any more regarding the issue.
[12] The parties proceeded before Judge de Jong on the basis that he should decide whether leave should be granted for any of the applications to which I have referred and, if so, determine the application itself.7 Having heard evidence from each of the parties and having heard legal submissions, including from lawyer for the child, the Judge said:
ORDERS AND DIRECTIONS
[34] I make the following orders and directions:
(a) The 28 March 2013 parenting order is varied by removing the ... conditions imposed by Judge McHardy.
(b) As to the s 44 application, the following orders and directions are made:
(i) Leave is granted.
(ii) The father may take [the child] to GP visits for non- urgent medical treatment and procedures but he must advise the mother as soon as practicable what the purpose of the visit was and outcome.
(iii) The application with regard to [the child] having any nasal medical treatment is adjourned for review in about two months.
(c) The mother’s leave application and substantive applications
are dismissed.
(d) The final hearing is to be before me.
[13] One of the issues which arises on appeal is whether the Judge had jurisdiction to make the orders in [34](a) and (b)(ii) and for the reasons set out below I have
concluded that he did not.
6 Care of Children Act 2004, s 142.
Approach to appeal
[14] Counsel for the Respondent submits, and I agree, that the appeal is by way of rehearing.8 The Appellant bears the onus of satisfying me that I should reach a different decision from the Judge. The Appellant is entitled to judgment in accordance with my opinion but I am justified in interfering with Judge de Jong’s decision only if I consider it wrong.9
Refusals of leave
[15] To the extent that the Appellant was refused leave to appeal, she wishes this
Court to grant leave and determine the applications.
[16] The Appellant’s first proposed application, to vary or discharge the parenting order, was intended to have the child returned to the Appellant’s care.10 The gist of the application for leave, of the application itself and of the Appellant’s affidavit in support is that the Respondent has neglected the child’s health.11
[17] The Appellant’s proposed second application sought an order from the Court requesting the preparation of a medical report. The gist of the application for leave, the application itself and the affidavit in support is that the Appellant considered the child to be gravely unwell.12 The Judge recorded the Appellant’s submission as being to the effect that the Respondent had neglected the child’s need for urgent medical treatment for a heart infection and blood clot in his leg and that the Appellant sought a general pathology medical examination, ECG, chest and throat x-rays, a FISH test to show any gene mutation and DNA profiling.13
[18] The Judge treated this application as one that would be made pursuant to s 133(2) COCA, if leave were granted. Section 133 COCA permits the Court to
8 Care of Children Act 2004, s 143(4); High Court Rules, r 20.18.
9 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
10 S v S, above n 1, at [6].
11 On Notice Application for an Order for Leave of the Court, dated 4 July 2013; On Notice
Application for an Order for Variation or Discharge of Parenting and Other Orders, dated 4 July
2013; and Affidavit of Applicant, affirmed 4 July 2013.
12 On Notice Application for an Order for Leave of the Court, dated 2 August 2013; On Notice Application for an Order for Children’s Medical Emergencies Guardianship Applications to the Family Court, dated 2 August 2013 and Affidavit of Applicant, affirmed 2 August 2013.
request an appropriately qualified person to prepare a medical report on a child in particular circumstances.
[19] The Judge declined to grant the Appellant leave to bring either application, saying:
[22] I am not satisfied there are sufficient grounds or evidence to support a material change or a change of any kind to [the child’s] situation that warrant leave be granted for the mother to file her three applications. The mother is so fixed in her views that she has chosen to interpret each word contained in old blood tests using the internet. This has resulted in her coming to the conclusion that [the child] is unwell and it would be unsafe for [the child] to have nasal surgery.
[23] She has also used this to support her argument that a comprehensive medical assessment is required which, in my view, appears to be out of all proportion to [the child’s] situation. There is simply insufficient evidence on the balance of probabilities to support any of the mother’s applications. ...
[20] The welfare and best interests of the child will always be the paramount consideration in respect of an application under COCA and an application for leave is no exception.14 Moreover, in considering whether or not to grant leave a Court often has regard to the merits of the application itself.
[21] There is no independent evidence that the Respondent has neglected the child’s health or that the array of tests proposed by the Appellant is necessary. The fact that the Appellant considers extensive medical assessment necessary is insufficient. The Appellant complains that none of the medical personnel she has approached will assist her. I do not accept her submission that the medical staff are conspiring against her or the child, there being no evidence to that effect.
[22] In my view the Judge was correct to decline leave to bring either of these first two applications.
[23] The Appellant’s proposed third application concerned breaches of the conditions. The Judge found as a fact that the Respondent had breached condition
one and that both parents had breached condition two. The Judge considered the
14 Care of Children Act 2004, s 4.
Respondent’s breach of condition one to be due to a mistaken interpretation of condition one and that the breaches of the second condition were:15
… completely understandable in the context of what has taken place …
[24] The Judge had the benefit of hearing from the Respondent as to the circumstances in which he had breached condition one and it is apparent from what I have said that the Judge considered condition two impracticable. I am not persuaded to reach a different view from the Judge as to whether such breaches as there had been warranted action by the Court.
[25] It follows from the above that I dismiss this appeal in so far as it is against the
Judge’s refusals to grant leave.
Grant of leave to the Respondent
[26] The Judge granted leave to the Respondent to make his application pursuant to s 44/46R COCA, and made directions for the filing of evidence on the issues which arose. The gist of the application was for the child to have treatment for a historical injury to his nose – a broken nose sustained at school – after the child had reached 16.
[27] Counsel for the Respondent submits that the order to grant leave was interlocutory and that the Appellant would require leave to appeal from the Family Court before the High Court could hear her appeal on this issue.16
[28] I accept the submission that an order to grant leave is interlocutory, given that such an order does not have the effect of determining the underlying application. Even if I am wrong, however, having reviewed the relevant information before the Court, I am satisfied that the Judge was correct to grant leave. As I have said, the paramount consideration in any issue under COCA is the welfare and best interests of the child. There was evidence before the Judge that the child wished to have the treatment and, given that, it was necessary to make arrangements for the issue to be
addressed in a considered way. I dismiss the appeal against this order.
15 S v S, above n 1, at [25].
16 Care of Children Act 2004, s 143(3).
Discharge of conditions and order pursuant to s 44
[29] I referred above to the evidence that the Judge heard regarding the compliance, or rather lack of it, with the conditions. The Judge went on to say:17
[27] Having reached the conclusions that I have, I intend to discharge the conditions attached to the parenting order with regard to medical matters …
[28] I also intend to make a s 44 order which makes it clear the father may take [the child] for GP visits for non-urgent medical treatment and procedures so long as he advises the mother as soon as practicable about the purpose of the visit and the outcome. His evidence is that, in more recent times, he has been able to talk to the mother by telephone and his intention is to discuss matters of this kind with the mother following medical visits.
[29] The Court’s expectation is that both parents will attend with [the child] to specialist medical appointments and treatment. If there are any issues between the mother and hospital authorities, that will be a matter for the hospital authorities. However, as far as this Court is concerned, the mother is entitled to be part of specialist visits with [the child]. It is important when [the child] attends specialist visits that he is able to discuss with his parents and the specialist about his options and contribute to decisions made about his medical treatment.
[30] On appeal the Appellant submitted that Judge de Jong lacked jurisdiction to discharge the conditions and to make the orders that he did. Lawyer for the child acknowledged that the Judge may not have had jurisdiction but submitted that the orders were “a pragmatic and necessary solution”.
[31] I do not consider anything turns on the fact that the Judge referred to s 44 rather than s 46R because, as I have said, they are broadly equivalent. Section 46R COCA provides:
46R Disputes between guardians
(1) If 2 or more guardians of a child are unable to agree on a matter concerning the exercise of their guardianship, any of them may apply to the court for its direction.
(2) An application under subsection (1) must be made to a Family Court unless subsection (3) applies.
(3) An application under subsection (1) must be made to the High Court, and the High Court has exclusive jurisdiction to settle the dispute, where,—
17 S v S, above n 1.
(a) under an order of the High Court, 2 or more persons are guardians of, or have the role of providing day-to-day care for, a child, and that order has not been removed into a Family Court under section 127; or
(b) a child is under the guardianship of the High Court.
(4) On an application under subsection (1), the court may make any order relating to the matter that it thinks proper.
[32] Section 46R(4) permits the Court to make such order as it thinks fit when determining an application brought pursuant to s 46R(1). Although the Respondent had brought such an application, in fact the Judge had only determined the application for leave. Moreover, the subject matter of the Respondent’s application was quite different. It follows that I do not consider the Judge had jurisdiction pursuant to s 44/46R to discharge the conditions and make the order that he did and I propose to reverse the same.
Result
[33] For the reasons given above:
(a) I quash the order made by Judge de Jong in [34](b)(ii) of his decision, and reinstate the conditions imposed by Judge McHardy on the making of the parenting order on 28 March 2013; and
(b) I dismiss the appeal in all other respects.
Costs
[34] Both the Respondent and lawyer for the child sought costs. The Appellant is opposed to any award of costs being made against her.
[35] I am satisfied that the Respondent should have some costs. The Appellant has, however, had some partial success and, given that, I propose to award the Respondent only two thirds of his costs.
[36] The Respondent seeks costs on a 2B basis. I do not consider time band B is appropriate. I accept that the Appellant’s written submissions were wide ranging but
it was unnecessary for the Respondent to file such extensive submissions in reply. Section 143(1) COCA clearly limits the scope of any appeal.
[37] I do not propose to certify for second counsel as I do not consider second counsel was required. In addition, the Respondent has claimed for the preparation of lists of issues, authorities and a common bundle. It may be that these costs are, covered by the costs of preparation of the case on appeal, for which the Respondent has also claimed. I award the Respondent two thirds of his costs on appeal on a 2A basis, and two thirds of his disbursements. In the absence of agreement the Registrar is to determine any dispute as to the items for which the Respondent may claim.
[38] Lawyer for the child also sought an award of costs against the Appellant. I am satisfied that such an award would cause hardship to the Appellant and decline to order the same for that reason.
..................................................................
M Peters J
0
1
0