D (SC 115/2022) v JDN [2023] NZSC 4

D (SC 115/2022) v JDN [2023] NZSC 4 [17 February 2023]NOTE: ORDER PROHIBITING PUBLICATION OF NAMES ORIDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILDRENREMAINS IN FORCE.NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018, ANYREPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 115/2022[2023] NZSC 4BETWEEN D (SC 115/2022)ApplicantAND JDNRespondentCourt: Glazebrook, Williams and Kós JJCounsel: Applicant in personJudgment: 17 February 2023JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONSBackground[1] Ms D seeks leave to appeal against the Court of Appeal decision in TFD vJDN.1 The procedural history is as follows. In September 2021, the Family Court1 TFD v JDN [2022] NZCA 503 (Simon France, Ellis and Dunningham JJ) [CA judgment].declined two applications made by TFD for a protection order under the FamilyViolence Act 2018.2 The Family Court concluded:3 that [Ms D's] application is not based on reasonable fear of further violencebut her inability to accept the views of independent agencies including thiscourt as she wants the children with her in Australia. Her application is anattempt to circumvent the decisions already made about the care of thechildren.[2] The Court of Appeal also noted that:4 [the Family Court's] conclusion that the children are safe not only accordswith the views of other Judges in the Family Court, but also those ofOranga Tamariki, Police and counsel for the children.[3] Ms D filed an appeal in the High Court some four months out of time. Anextension of time was declined by the High Court on the basis that an extension oftime was not commensurate with the interests of justice.5 The High Court alsocommented on the apparent merit of the appeal, stating that the Family Court decisionwas comprehensive and that there was no obvious error.6[4] On appeal, the Court of Appeal was unable to discern any error in Downs J'sapproach, his reasoning or in the result. On the contrary, the Court of Appealconsidered he was right to refuse an extension of time.7Our assessment[5] The points raised by Ms D are entirely factual and therefore no matter ofgeneral or public importance arises.8 Nor does anything raised by Ms D indicate thereis any risk of a miscarriage of justice.92 [D] v [JDN] [2021] NZFC 9305 (Judge Tan) [FC judgment].3 At [134].4 CA judgment, above 1, at [25].5 [D] v [JDN] [2022] NZHC 1179 (Downs J) [HC judgment] at [49].6 At [43].7 CA judgment, above n 1, at [27].8 Senior Courts Act 2016, s 74(2)(a).9 Section 74(2)(b). For the threshold required for a miscarriage of justice in civil cases, seeJunior Farms Ltd v Hampton Securities Ltd (in liq) [2006] NZSC 60, (2006) 18 PRNZ 369 at [5].Result[6] The application for leave to appeal is dismissed.[7] As the respondent filed no submissions, we make no order as to costs.