BLK v FK [2017] NZCA 400

BLK v FK [2017] NZCA 400 [13 September 2017]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 FUTHER INFORMATION,PLEASE SEE HTTPS://WWW.JUSTICE.GOVT.NZ/ABOUT/NEWS-AND-MEDIA/MEDIA-CENTRE/MEDIA-INFORMATION/MEDIA-GUIDE/COURTS-WITH-SPECIAL-MEDIA-PROVISIONS/FAMILY-COURT/.IN THE COURT OF APPEAL OF NEW ZEALANDCA171/2017CA348/2017[2017] NZCA 400BETWEEN BLKApplicantAND FKRespondentHearing: 10 July 2017Court: Winkelmann, Brown and Clifford JJCounsel: Applicant in personA R Shaw for RespondentS J Fraser as Counsel assistingJudgment: 13 September 2017 at 3.00 pmJUDGMENT OF THE COURTA The applications for leave to appeal are declined.B The applicant must pay the respondent costs for a single standard application for leave to appeal on a band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] The applicant applies under s 145(1)(b) of the Care of Children Act 2004 for leave to appeal to this Court from two judgments of Thomas J, the first striking outthe applicant's appeal from a Family Court judgment1 and the second making an order for costs against the applicant consequential on the strike-out.2[2] On 26 May 2017 Cooper J appointed Mr Fraser as counsel to assist the Court. The appointment was limited to filing submissions advising this Court as to grounds which might be advanced in support of the granting of leave to appeal. The Judge also requested counsel to give consideration to the possible implications of s 56(4) of the Senior Courts Act 2016, as well as the transitional provisions in s 186 and cl 10(1) of sch 5 of that Act.The litigation to date[3] As Thomas J recorded,3 the longstanding litigation in the Family Court concerning the parenting and care of S, the son and only child of the respondent and the applicant, commenced with proceedings under the Care of Children Act initiated by the respondent in August 2013.[4] In December 2014 the Family Court issued a lengthy decision in which a parenting order was made that S was to be in the day-to-day care of the respondent. The applicant was allowed contact on specified days.4 The applicant appealed against that and two subsequent decisions. Those appeals were filed out of time and were struck out in the High Court.5[5] The respondent then applied under the Care of Children Act for enforcement of the parenting order and sought a protection order against the applicant. Various applications to and directions made by the Family Court followed between 2015 and June 2016 when Judge Black in the Family Court at Wellington struck out the1 BLK v FK [2017] NZHC 302.2 BLK v FK [2017] NZHC 1143.3 BLK v FK, above n 1, at [1].4 [K] v [K] [2014] NZFC 9380.5 [K] v [K] [2016] NZHC 1.applicant's defence to the application for a protection order and directed that the enforcement proceedings be set down for a formal proof hearing in chambers.[6] The applicant was given leave to apply to oppose those orders within a specified timeframe but made no such application.[7] On 24 August 2016 Judge Black issued a reserved decision in respect of the enforcement and other applications.6 The applicant's purported appeal to theHigh Court against that decision was filed out of time which prompted therespondent's application to strike out the appeal and culminated in the judgments ofThomas J the subject of the present applications.[8] Before considering the applications, it is necessary to first address the issuewhether the Senior Courts Act applies, particularly given Mr Fraser's submissionthat, if the Senior Courts Act applies, then there is no requirement for leave to appeal to be obtained in this case.Does the Senior Courts Act 2016 apply to these applications?[9] The Senior Courts Act came into force on 1 March 2017 and makes changes to the appellate pathways for High Court decisions on interlocutory applications, such as an application for strike-out. Relevantly for present purposes, s 56(4) of the Senior Courts Act provides:(4) Any party to any proceedings may appeal without leave to the Court of Appeal against any order or decision of the High Court—(a) striking out or dismissing the whole or part of a proceeding,claim, or defence [10] That position is to be contrasted with the appeal pathway provided under the Care of Children Act. Section 145(1)(b) of the Care of Children Act provides:(1) An appeal lies to the Court of Appeal from an order or decision of ` the High Court under this Act, but—6 [K] v [K] [2016] NZFC 7064.(b) if the order or decision was made on appeal from the Family Court or the District Court, an appeal lies only with the leave of the Court of Appeal.[11] Mr Fraser submits that s 56(4) of the Senior Courts Act applies to theapplicant's proceedings, such that he has a right of appeal against Thomas J'sjudgments, rather than requiring leave under the Care of Children Act.[12] We consider that s 56(4) of the Senior Courts Act is inapplicable to these proceedings for three reasons. First, and most importantly, we agree with the submission of Mr Shaw for the respondent that the present applications are governed by s 145(1)(b) of the Care of Children Act. In Blackstone v Blackstone this Court held that the specific Care of Children Act appeal provisions prevail over the general provisions of the Judicature Act.7 We consider this remains good authority, irrespective of whether the Judicature Act or the Senior Courts Act would otherwise apply to these applications.[13] Second, the Senior Courts Act contains a transitional provision, which has raised questions about when the Senior Courts Act applies to appeals or applications for leave to appeal filed in this Court. Clause 10(1) of sch 5 provides:10 Proceedings, etc, continue under relevant Act(1) All proceedings pending or in progress in a court operating under the relevant Act immediately before the commencement of this clause may be continued, completed, and enforced only under the relevant Act (including the relevant rules of court) as if that Act had not been repealed by this Act.[14] This Court in Sutcliffe v Tarr determined that the transitional provision in cl 10(1) of sch 5 to the Senior Courts Act means that a proceeding pending in the High Court as at 1 March 2017 continues under the Judicature Act until completed.8A "proceeding" includes any appeal to this Court and all enforcement procedures.Accordingly, because the proceeding in the High Court was in progress as at 1 March, the Senior Courts Act does not apply to these applications.7 Blackstone v Blackstone [2008] NZCA 312, (2008) 19 PRNZ 40 at [17].8 Sutcliffe v Tarr [2017] NZCA 360.[15] Finally, even if the Senior Courts Act were to apply, we do not consider that s 56(4) is applicable to second appeals to this Court in respect of matters that originated in the Family Court. Appeals in relation to such matters, as well as those originating in the District Court and Youth Court, are to be governed by s 60 of the Senior Courts Act. That provides that leave to appeal must first be sought from the High Court or, if the High Court refuses leave, this Court. Accordingly, we determine that s 56(4) of the Senior Courts Act is not available to give the applicant a right of appeal to this Court.[16] We turn then to the applications for leave to appeal.AnalysisApplicable principles[17] The principles to be applied in an application under s 145(1)(b) of the Care of Children Act are those stated by this Court in Lowe v Way:9(a) The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.(b) In the end, the guiding principle must be the requirements of justice.(c) Upon a second appeal, this Court is not engaged in the correction of error; its primary function is to clarify the law and to determine whether it has been properly construed and applied by the Court below.Ambit of the applications for leave to appeal: the applicant's real objective[18] The applications for leave to appeal are appropriately and necessarily directed solely to the judgments of Thomas J. The proposed appeal in respect of the9 Lowe v Way [2015] NZCA 153, [2015] NZFLR 547 at [18].strike-out decision would be limited to the admonishment and variation of the parenting order while the proposed appeal against the second judgment would be confined to costs. However it is apparent that the applicant has a broader objective that goes well beyond the ambit of those two decisions.[19] That objective is apparent from the notice of appeal lodged with the first application for leave. It stated that the applicant seeks to appeal against not only the first judgment of Thomas J but also the judgment of Judge Black of 24 August 2016and the judgment of Judge Ullrich QC dated 9 December 2014 as well as "others[delivered] during this time". The relief sought in the notice is an order of this Courtnot only allowing the appeal but remitting all matters back to the Family Court and quashing all costs orders made against the applicant.[20] In similar vein in his memorandum filed on the morning of the leave hearing the applicant stated that, if allowed to provide his evidence and story, the Courtwould see how "simple it is for the Court of Appeal to fix everything". Theapplicant also seeks to file further evidence on appeal, advancing as his reason the fact that the Court does not yet have the important evidence of what really happened. He considers that armed with such evidence the Court will not only understand hissituation but also "fix it all, not just a strike out".[21] In the course of argument, when we drew attention to the confines of the present applications, Mr Fraser suggested that if the appeals were allowed and sent back to the High Court, this Court could also make a direction that the High Court should entertain an application to extend time for the filing of an appeal against the decision of Judge Black. Even if that course was appropriate, which it is not, that would still not enable the applicant to challenge the original judgment of Judge Ullrich.[22] The only appropriate course for revisiting the terms of the parenting order made in 2014 is by way of an application to the Family Court for variation of the order. In January 2016 Ellis J observed that avenues remained for the applicant inthe Family Court if circumstances changed in some material way.10 Thomas J made a similar observation in her first judgment.11[23] Indeed, in a minute dated 17 May 2017 Judge Black indicated that, if the applicant can demonstrate that he has addressed the health issues which have been part of the problem in the litigation and is in a position to meaningfully engage with the Court and its processes, that would amount to a material change of circumstances which might entitle the Family Court to revisit the final order which was made in 2016 on a formal proof basis.12 The Judge concluded that minute with the following directions:[7] In terms of any proposed variation proceedings, they need to be carefully case managed and as I said during the course of this conference, Mr [BLK] being represented is a vital component of effective case management of those proceedings and as I have the most recent knowledge of this file, it seems to me I should case manage the proceedings, if indeed those proceedings materialise and accordingly I make the following directions:(a) Any application for variation may be made on a without notice basis but it should not be placed on the national E-duty platform. It should be instead referred to me.(b) I will place the application on notice, classify it as complex, appoint a lawyer to represent [S], assign the proceedings to myself to case manage and direct a hearing.(c) The question of leave will be the first question which will need to be determined and that question will be determined once firstly, Mr [FK] has an opportunity to respond and secondly, when the Court knows what [S] thinks about the application for leave and whatlawyer for child's advocacy is on [S]'s behalf.[24] We perceive that the applicant does not wish to do so because of what he views as the unfavourable treatment which he experienced in the Family Court proceedings. However, if the applicant wishes to revisit the original parenting order then, given the litigation history, his only realistic option is by an application to the Family Court for variation of the order.10 [K] v [K], above n 5, at [34].11 BLK v FK, above n 1, at [56].12 [K] v [K] FC Wellington FAM-2013-085-827, 17 May 2017 (Minute of Judge Black).Should leave be granted?[25] The thrust of the applicant's proposed appeal is that throughout the history ofthis litigation a miscarriage of justice has occurred both procedurally and substantively because the applicant has been an impaired litigant by reason of suffering from post-concussion syndrome and multiple concussion syndrome. The applicant relies on that condition as explaining the history of his substantial non-compliance with orders, timetables and time limits which have applied in this matter.[26] A reading of the various decisions suggests that the Judges have endeavouredto accommodate the applicant's past erratic behaviour. In the original Family Courtdecision, Judge Ullrich noted that some of his attributes may be attributable to his diagnosis of ADHD.13 Even at the strike out stage Thomas J extended the applicant considerable leeway by entertaining a deemed application for an extension of time to appeal.14 Mr Fraser acknowledged that allowances have been made to the applicant but he submitted that they have not been sufficient.[27] There are limits to the extent to which a party's non-compliance with thelegal processes and the courts' orders can be excused, particularly in cases such asthe present where the interests of a child are at stake. For example, Judge Black concluded that there had been on-going and serious breaches of the parenting order by the applicant.15 The Judge noted that the applicant had persistently breached Court orders and he was satisfied on the evidence that the applicant had no intention of complying with them.16 Similarly Thomas J noted the applicant's significanthistory of failing to comply with Court orders, including two unless orders and all costs orders.1713 [K] v [K], above n 4, at [630].14 BLK v FK, above n 1, at [32].15 [K] v [K], above n 6, at [4].16 At [5].17 BLK v FK, above n 1, at [30].[28] We do not propose to dwell on the history of delay and non-compliance on the part of the applicant. Rather, the factors that we consider were particularly significant in the strike-out decision were the following three considerations:18(a) the strength of the applicant's proposed appeal;(b) the prejudice to the respondent and S should the proceedings be further delayed; and(c) the welfare and best interests of S.[29] For the detailed reasons given in the judgment of Thomas J, those factorsstrongly supported the decision to strike out the applicant's purported appeal. Theapplicant's reliance on the medical conditions from which he suffers as anexplanation for his conduct in the litigation cannot diminish the significance of those three factors.[30] It is appropriate then to stand back and consider that conclusion in the context of the point made earlier as to the lack of utility in the pursuit of an appeal against a judgment of comparatively narrow ambit late in the course of the litigation. It isplainly the applicant's desire to revisit the terms of the original parenting order. Given that the applicant appears now to be in better health,19 we consider that the availability of the alternative and more suitable avenue of seeking to engage afresh with the substance of the original parenting order also weighs against granting leave for an appeal on the strike-out decision.[31] We do not consider that either application satisfies the principles recognised in Lowe v Way.20 The requirements of justice, when assessed not merely from the perspective of the applicant but in addition from the viewpoints of both the respondent and S, do not justify this Court entertaining an appeal against the strike out of an appeal confined to the subject matter of the Family Court judgment of 24 August 2016. Importantly, declining leave to appeal on that somewhat confined18 At [42]–[54].19 At [37].20 See [17] above.aspect of the dispute will not preclude the applicant taking up the opportunityforeshadowed in Judge Black's minute of 17 May 2017 of applying for variation ofthe parenting order.[32] Although Thomas J considered that a good case could have been made outfor indemnity costs, the respondent had adopted what, in the Judge's view, was anextremely reasonable position in merely seeking increased costs with a 25 per cent uplift over scale 2B costs.21 There is nothing in the costs judgment granting costs in that measure that we consider warrants the grant of leave to appeal to this Court.Result[33] The applications for leave to appeal are declined.[34] The applicant must pay the respondent costs for a single standard application for leave to appeal on a band A basis and usual disbursements.Solicitors:C & F Legal Limited, Nelson for Respondent21 BLK v FK, above n 2, at [14]–[15].