BARKER v ROY [2016] NZCA 62

BARKER v ROY [2016] NZCA 62 [10 March 2016]ORDER PROHIBITING PUBLICATION OF THE PARTIES' NAMES ORIDENTIFYING PARTICULARS. THE JUDGMENT MAY BE CITED BYREFERENCE TO THE NAMES "BARKER" AND "ROY" GIVEN TO THEPARTIES IN THE HIGH COURT.NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004,ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO11D OF THE FAMILY COURTS ACT 1980, FOR FURTHER INFORMATIONPLEASE SEE HTTP://WWW.JUSTICE.GOVT.NZ/COURTS/FAMILY-COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.IN THE COURT OF APPEAL OF NEW ZEALANDCA582/2015[2016] NZCA 62BETWEEN BARKERApplicantAND ROYRespondentHearing: 15 February 2016Court: Wild, Winkelmann and Kós JJCounsel: Applicant in personE L Ross for RespondentJudgment: 10 March 2016 at 3.30 pmJUDGMENT OF THE COURTA The application under r 29A of the Court of Appeal (Civil) Rules 2005 for an extension of time to apply under s 145(1)(b) of the Care of Children Act 2004 for leave to bring a second appeal is dismissed.B The application for leave, under s 145(1)(b) of the Care of Children Act, is also dismissed.C The applicant must pay the respondent's costs for a single standard application for leave to appeal on a band A basis plus usual disbursements incurred in responding to both the applications.D Order prohibiting publication of the parties' names or identifyingparticulars. The judgment may be cited by reference to the names"Barker" and "Roy" given to the parties in the High Court.____________________________________________________________________REASONS OF THE COURT(Given by Wild J)[1] These are applications under r 29A of the Court of Appeal (Civil) Rules 2005 for an extension of time to apply under s 145(1)(b) of the Care of Children Act 2004 for leave to bring a second appeal, and for leave under s 145(1)(b).[2] The applicant seeks leave to appeal a judgment delivered by Keane J in the High Court at Tauranga on 30 October 2014.1 In that judgment Keane J dismissed an appeal by the applicant against a decision given by Judge Wills in the Tauranga Family Court on 31 January 2014.2[3] The parties had a short relationship, during which the applicant became pregnant. Their son is now six years old. In its decision the Family Court upheld a consent order made on 15 January 2013 giving the respondent the day-to-day care of the child. The applicant had applied to the Family Court to have the consent order set aside on the ground the respondent had hit the child. Judge Wills was not satisfied this had occurred. She found the applicant had coached the child to make false allegations against the respondent.[4] On appeal, Keane J upheld those two factual findings. Keane J also endorsedJudge Wills' view that the child is safe in the respondent's primary care.1 Barker v Roy [2014] NZHC 2683.2 J S v N C D [2014] NZFC 10517.[5] The applicant seeks to appeal the whole of Keane J's judgment. Shechallenges the findings that:(a) she had coached the child;(b) she had refused to return the child to the respondent's care on twooccasions in 2013, resulting in the parenting order being enforced on each occasion through the issue of a warrant; and(c) the child is safe in the respondent's care.[6] In place of the orders made by the Family Court, the applicant seeks a parenting order placing the child in her day-to-day care and giving the respondent supervised contact.[7] Although applications under both r 29A and s 145(1)(b) are for decision, it is convenient to focus on the application under r 29A seeking an extension of time, and to work through the well-established factors relevant to that.3 Those factors include the merits of the proposed appeal and whether it has any public or general importance: both factors very relevant to the decision whether to grant leave under s 145(1)(b).Length of delay and reasons for it[8] The applicant needed to file her leave application by 26 November 2014 in order to comply with r 29, which provides an appeal must be filed within 20 working days after the date of the decision against which the party wishes to appeal. It was filed, along with the r 29A application, on 5 October 2015. It is thus about 11 months out of time. The explanation given is difficulties in obtaining legal representation. While we accept the difficulties, we do not accept that they excusealmost a year's delay. The applicant could have filed the necessary applicationsherself, as she eventually did on 5 October. We note that Mr Gorringe, a Hamilton3 These are set out in Wardell v ASB Bank Ltd [2015] NZCA 344 at [12], where earlier authorities including My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 at [19] are referred to.barrister, advised the legal aid authorities on 24 February 2015 that any application for leave would not have a reasonable chance of success, because the proposed appeal itself lacked sufficient merit. It is clear from the application that the applicant accepted, at least at that point, that she would not obtain legal aid for any appeal, yet a further seven months went by before she filed her applications.[9] In summary, we consider the delay is lengthy, and not adequately explained. That conclusion makes due allowance for the facts that the applicant is in somewhat difficult domestic circumstances and is acting without legal assistance.Conduct of the parties[10] The point that concerns us here is that the applicant has chosen not to maintain contact with her son since June 2014. That is, she has had no formal contact with her son for almost 20 months.[11] In the final paragraphs of her judgment, Judge Wills directed that theapplicant's contact with the child was to be supervised contact until the applicant had satisfactorily completed counselling. The Judge stated:4At the conclusion of the counselling and upon receipt of a certificate fromthe counsellor confirming conclusion [the applicant's] contact should move from a supervised regime to an unsupervised one.[12] Following the Family Court's judgment of 31 January 2014, the applicantmaintained her relationship with the child, her contact being supervised by persons approved by the lawyer for the child, in accordance with the Family Court'sjudgment.5 Then, for reasons not clear to us, in June 2014 the applicant ceased contact, despite the availability of funding for the supervision mandated by the Family Court.[13] Further, for whatever reason, the applicant elected not to attend any counselling, and on 25 February 2015 she discontinued her proceeding in the Family Court.4 J S v N C D, above n 2, at [103].5 At [105].[14] So the position is that the applicant is seeking leave to bring a second appeal to this Court with the aim of setting aside the parenting arrangements ordered by the Family Court and upheld by the High Court, and substituting a parenting order in her own favour with supervised access to the respondent. She is doing that when she has not had formal contact with the child, now for 20 months. Without seeking to attribute blame, or implying any criticism, we see that as a regrettable situation and one that weighs against the granting of an extension of time for the leave application.Extent of prejudice caused by the delay[15] There is obvious prejudice to the respondent, if he is obliged, now, to respond to a second appeal to this Court. The parenting arrangements for the child have been in dispute between the parties ever since the applicant made her applications to the Family Court on 19 February 2013. Extending time and granting leave would mean that those arrangements will continue to be in dispute until this Court can determine the appeal. The ongoing anxiety and uncertainty that would generate is obviously prejudicial to the respondent.[16] However, we prefer to focus on prejudice to the child. This is a proceeding under the Care of Children Act. Section 4 of that Act provides:4 Child's welfare and best interests to be paramount(1) The welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration—(a) in the administration and application of this Act, for example, in proceedings under this Act; and(b) in any other proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child.(2) Any person considering the welfare and best interests of a child in his or her particular circumstances—(a) must take into account—(i) the principle that decisions affecting the child should be made and implemented within a time frame that is appropriate to the child's sense of time; and(ii) the principles in section 5; and(b) may take into account the conduct of the person who is seeking to have a role in the upbringing of the child to the extent that that conduct is relevant to the child's welfare and best interests.[17] The child was born in August 2009. So he was three years old when the applicant made her applications to the Family Court in February 2013 and four years old when the Family Court gave its judgment on 31 January 2014. He will be seven years old in August this year. So the proper decisions affecting his day to day care and parental contact have been in dispute for half his life. To perpetuate that situation would breach s 4(1) and (2).Prospective merits of the appeal[18] Although the notice of appeal states the High Court "was wrong in fact and law and with regards to the Care of Children Act 2004", the proposed appeal will bea wide-ranging challenge to the findings by fact of the Family Court and High Court.Prominent are allegations that investigations into the respondent's conduct towardthe child were flawed.[19] The Family Court hearing spanned three days. Judge Wills had before her some 17 affidavits, together with reports made under s 132 of the Care of Children Act, directed by the Court. The Judge also heard oral evidence from 12 witnesses.[20] On appeal, Keane J reconsidered all that evidence, and whether the impugned findings of Judge Wills based on it were sound. Keane J also received further evidence on two particular aspects of the case. He considered whether this furtherevidence should cause him to differ from the Family Court's findings of fact.[21] Amongst the conclusions set out in [100]–[105] of Keane J's judgment, is thisone:6[102] Despite that further evidence, I nevertheless agree with the Judge'stwo central conclusions. There is no evidence, whether direct or indirect, that [the respondent] did assault [the child]. There is, however, both direct6 Barker v Roy, above n 1.and indirect evidence that [the child] made those complaints because he had been prompted, consciously or unconsciously, by [the applicant]. It follows that, with the exception of her late invention inference, I also agree with theJudge's underpinning inferences.[22] So all the evidence was thoroughly considered by the Family Court Judge, who had the huge advantage of hearing and observing the witnesses who gave oral evidence, including both the applicant and the respondent. The resulting findings have been reconsidered on appeal by Keane J, in particular against the further evidence he admitted.[23] So the task confronting the applicant, if we allowed a second appeal, is to persuade this Court that the concurrent findings of fact by the Family Court and High Court are wrong. She would be asking us to set those findings aside when we, as a second appellate court, would not have the advantage of hearing and seeing the witnesses. A number of the critical findings of the courts below involved findings of credibility, because there was conflicting evidence. Challenging findings of credibility on appeal is nothing short of a hopeless task.[24] If permitted to bring a second appeal, the applicant applies under r 45 Court of Appeal (Civil) Rules for leave to adduce fresh evidence. We have looked at this proposed evidence. We are satisfied that the application to adduce it does not alter our assessment that the proposed appeal has no real prospect of success.[25] For example, amongst the proposed fresh evidence, is an affidavit sworn by the applicant's adoptive mother. This deposes to events on 16 February 2013. Theapplicant's mother made an affidavit and gave oral evidence in the Family Court.She could have given evidence about the events of 16 February 2013 about which she now seeks to depose. We do not accept that her affidavit contains fresh evidence, admissible in terms of r 45.[26] The same applies to statements contained in emails from a proposed witness we will call Ms C. These statements also relate to the events of 16 February 2013. Ms C also made an affidavit and gave oral evidence in the Family Court. The proposed evidence of Ms C is also not fresh.[27] We have not overlooked that s 145(2) of the Care of Children Act provides:145 Appeal to Court of Appeal(2) The Court of Appeal may, in its discretion, if it thinks that the interests of justice so require,—(a) rehear the whole or any part of the evidence; or(b) receive further evidence.For the reasons just explained, this Court would be most unlikely to exercise that discretion. There is no basis to rehear the whole or any part of the evidence. We have already addressed the proposed further evidence.[28] To summarise, we assess that the proposed appeal has no realistic prospect of success. That assessment factors in the proposed fresh evidence.Public importance[29] Disputes over the parenting arrangements for a child are always of greatimportance to the child and the child's parents and caregivers.[30] But this final factor reflects that this would be a second appeal. Such an appeal needs to raise some issue of public or general importance to warrant the granting of leave. The proposed appeal does not.Result[31] We decline the application under r 29A for an extension of time for the application under s 145(1)(b) of the Care of Children Act for leave to bring a second appeal.[32] For the sake of completeness, we also dismiss the s 145 leave application itself.Costs[33] The applicant must pay the respondent's costs for a single standard application for leave to appeal on a band A basis plus usual disbursements incurred in responding to both the applications.Suppression[34] To protect the anonymity of the parties' child, in addition to the publication restrictions imposed automatically by ss 11B to 11D of the Family Courts Act 1980, we make an order prohibiting publication of the parties' names or identifyingparticulars. The judgment may be cited by reference to the names "Barker" and "Roy" given to the parties in the High Court.