MD v LP [2023] NZCA 215

MD v LP [2023] NZCA 215 [7 June 2023]NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANYREPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND11D OF THE FAMILY COURT ACT 1980.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA55/2023[2023] NZCA 215BETWEEN MDApplicantAND LPRespondentCourt: French and Collins JJCounsel: Applicant in personC E Finn for RespondentJudgment:(On the papers)7 June 2023 at 11 amJUDGMENT OF THE COURTA The application for leave to appeal under s 145 of the Care of Children Act2004 is declined.B The applicant must pay the respondent costs regarding the leave to appealapplication calculated for a standard application with usual disbursements.C The following applications also filed by the applicant are declined:(a) for a copy of the High Court Care of Children Act proceedingtranscript;(b) for the transfer of the Family and High Court files;(c) for the consolidation of the proceeding with the domestic violencematters;(d) for the appointment of an amicus curiae;(e) for access to a copy of the complete High Court Care of Children Actproceeding file;(f) for leave to adduce further evidence;(g) for discovery orders;(h) for dispensing with security for costs;(i) for a stay of all Care of Children Act orders;(j) for interim relief (in the nature of a warrant to place the twin childrenwith the applicant); and(k) for removal of the lawyer for child.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] MD1 seeks leave under s 145 of the Care of Children Act 2004 to appeal adecision of Eaton J in the High Court delivered on 9 December 2022.2 In the decisionthe Judge upheld a final parenting order made in the Family Court regarding the careof MD's twins.3 Leave is required because the proposed appeal to this Court wouldbe a second appeal.4[2] In addition to the application for leave to appeal, MD has filed a number ofother applications associated with her proposed appeal.Background[3] MD and the respondent, LP, are the parents of twins born in mid-2018.Litigation between them regarding the children appears to have commenced while thechildren were still babies and has continued ever since.1 The names of the parties have been anonymised to protect their children's privacy and complywith the publications restriction in s 139 of the Care of Children Act 2004.2 [MD] v [LP] [2022] NZHC 3318 [High Court judgment].3 [LP] v [MD] [2021] NZFC 8062 [Family Court judgment].4 Care of Children Act 2004, s 145(1)(b).[4] The Family Court decision in question was delivered on 11 August 2021.Judge Walsh granted full day-to-day care of both children to their father, LP, withunsupervised contact being granted to MD for specified periods.5[5] The appeal against that decision was heard in the High Court by way of are-hearing. In his 76-page judgment, Eaton J analysed the evidence and submissionsin significant detail. At the conclusion of his judgment, he said he found himself inagreement with the "very thorough" decision of Judge Walsh and held that MD had"fallen well short of establishing any error."6[6] Eaton J also expressed concern that MD was obsessed by process issues to thepoint that she had lost focus of the real issue — the children's welfare.7 Similarconcerns had been raised in the Family Court which had also noted the children hadendured ongoing conflict between their parents throughout the course of their shortlives and were entitled to have the balance of their childhood free from that tensionand conflict.8The application for leave[7] It is well established that in order to obtain leave to appeal, MD must persuadeus that her proposed appeal raises some question of law or fact capable of bona fideand serious argument in a case involving some interest public or private of sufficientimportance to outweigh the cost of a further appeal.9[8] It has also been held that in a second appeal this Court is not primarily engagedin the correction of error.10 Its primary function is to clarify the law and to determinewhether it has been properly interpreted and applied by the Court below.11 Ultimately,the guiding principle must be the requirements of justice.125 Family Court judgment, above n 3, at [418]–[419].6 High Court judgment, above n 2, at [250].7 At [254].8 Family Court judgment, above n 3, at [416]–[417].9 L v K [2010] NZCA 618, (2010) 28 FRNZ 692 at [4]; citing Waller v Hider [1998] 1 NZLR 412(CA) at 413; and Downer Construction (NZ) Ltd v Silverfield Developments Ltd [2007] NZCA355, [2008] 2 NZLR 591 at [30]–[31].10 L v K, above n 9, at [4].11 At [4].12 At [4].[9] MD purports to raise a very large number of proposed appeal grounds. We arehowever satisfied that none of them meet the test for granting leave.[10] The grounds are all case-specific. Further, many of them consist of blandgeneralised assertions of error. Where specifics of the alleged errors are provided,they are errors which, viewed objectively, are neither apparent on the face of the recordnor could have had any impact on the child-focused reasoning and outcome of theHigh Court decision.[11] The one proposed ground of appeal that represents the best attempt to meet theleave threshold concerns the admissibility of a report prepared by a social workerunder s 19 of the Oranga Tamariki Act 1989 | Children's and Young Peoples Act 1989(the s 19 report).[12] In the High Court, MD contended that s 19 is a referral only section and assuch a s 19 report had no role to play in Care of Children Act proceedings.13 In hisdecision rejecting this submission, Eaton J acknowledged there was no High Courtauthority directly on point.14[13] The scope of s 19 is potentially a question of law of general or publicimportance. However, we are not persuaded that MD's contention is capable ofserious argument. That is because s 19 specifically says that in "any proceeding"where any court considers that any child is in need of care and protection on a groundspecified in s 14(1) of the Act, the Court may refer the matter to a care and protectionco-ordinator. Section 19 also requires that the co-ordinator must, within 28 days ofreceiving the referral, furnish the Court with a report.[14] In this case, the referral that led to the report was made by Judge Duggan ofthe Family Court who held concerns that the twins were being emotionally abused dueto parental conflict. Serious differences between parents and likelihood of seriousharm to a child's emotional wellbeing are, by virtue of s 14(1)(a)(ii) and s 14AA(2)(d)of the Oranga Tamariki Act, valid grounds for a referral.13 High Court judgment, above n 2, at [144].14 At [145].[15] It follows that in our assessment it is not arguable that the s 19 report in thiscase was somehow invalid or inadmissible. The lack of previous High Court authoritysimply reflects that.[16] Our decision to decline leave to appeal means that the other applications filedby MD fall away. They are predicated on the assumption of there being an appeal.They are in effect moot and are therefore formally declined.Outcome[17] The application for leave to appeal under s 145 of the Care of Children Act isdeclined.[18] The application for leave to appeal having failed, the applicant must pay therespondent costs for a standard application together with usual disbursements.[19] The following applications also filed by the applicant are declined:(a) for a copy of the High Court Care of Children Act 2004 proceedingtranscript;(b) for the transfer of the Family and High Court files;(c) for the consolidation of proceeding with the domestic violence matters;(d) for the appointment of an amicus curiae;(e) for access to a copy of the complete Care of Children Act proceedingfile;(f) for leave to adduce further evidence;(g) for discovery orders;(h) for dispensing with security for costs;(i) for a stay of all Care of Children Act orders;(j) for interim relief (in the nature of a warrant to place the twin childrenwith the applicant); and(k) for removal of the lawyer for child.Solicitors:Layburn Hodgins Solicitors, Christchurch for Respondent