Kibble v Lambda [2016] NZHC 1832 (8 August 2016)

Last Updated: 9 September 2016

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 HTTP://WWW.JUSTICE.GOVT.NZ/FAMILY-JUSTICE/ABOUT-US/ABOUT- THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-001681 [2016] NZHC 1832

BETWEEN	MARTIN KIBBLE Appellant
AND	GABRIELLE LAMBDA Respondent

Hearing:	4 August 2016
Appearances:	P J Stevenson for Appellant T Homes for Respondent B V MacLean - lawyer for children in Family Court
Judgment	8 August 2016

_{JUDGMENT OF PALMER J}

This judgment is delivered by me on 8 August 2016 at 5 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Counsel/Solicitor:

P J Stevenson, Barrister, Auckland [e-mail]

Vallant Hookers & Partners, Auckland [e-mail]

_{B Maclean, Barrister, Auckland [e-mail]}

KIBBLE v LAMBDA [2016] NZHC 1832 [8 August 2016]

Summary

[1] The Family Court has denied a father leave to revisit parenting orders to which he previously consented. He appeals to this Court and seeks a stay of enforcement of the parenting orders pending that appeal. The mother opposes the appeal and the stay. She submits that this Court does not have jurisdiction to hear the appeal. She says an application for leave to vary parenting orders under s 139A of the Care of Children Act 2004 (the Act) is an interlocutory application, which cannot be appealed without leave of the Family Court. Alternatively she submits there is no right to appeal because the matter has yet to be finally determined by the Family Court.

[2] I hold that the application for leave to vary the parenting orders is not an interlocutory application. Further, the decision on the application has finally determined the father’s new proceedings and has finally determined whether the children are to be relocated from New Zealand to California, or not. If the decision were not able to be appealed as of right that would not be consistent with the distinction in s 143 of the Act between interlocutory orders, which require the leave of the Family Court to be appealed, and decisions which “finally determine” proceedings, which are appealable as of right.

Facts

[3] There is an extensive and involved history to these proceedings. I outline only the limited facts relevant to the discrete issue before me.

[4] The father and the mother have three children. They separated in November

2014. Following private mediation in February 2015, and exchange of draft consent orders, a final parenting order was made in the Family Court by consent in mid November 2015.¹ This order provided for the mother, and the children, to move from New Zealand to California in the United States. It also provided for specified

_{contact arrangements for the father with the children. The father was actively}

¹ Kibble v Lambda [2016] NZFC 5437. The parents’ names in the intituling have been

anonymised, consistent with ss 11B and 11C of the Family Courts Act 1980.

involved with drafting the orders and had legal advice. The Court appointed counsel to represent the children.

[5] However, on 15 January 2016, the father lodged a border alert with Interpol. This had the effect of preventing the mother and children from leaving New Zealand, when they got to the airport to depart on 5 February 2016.

[6] On 15 February 2016 the father applied to the Family Court for:

(a) orders preventing removal of the children from New Zealand; (b) orders varying the parenting orders of 16 November 2015; and

(c) a guardianship direction that the children be re-enrolled in school in

New Zealand.

[7] The Family Court heard the applications on 28 June 2016 and delivered judgment on 29 June 2016. Judge Maude considered the applications, under s 139A of the Act, as applications for leave to commence substantially similar proceedings. This required the father to prove that there had been a change in the circumstances since the parenting order was given. In this case, the father said the mother had misled him as to whether she was in a relationship with someone else, which he only realised in early 2016. This meant his previous hopes of reconciliation, and the possibility of his relocation to California, were no longer tenable. He said these factors had influenced his agreement to relocation and the developments amounted to a material change in circumstances.

[8] Judge Maude did not consider the test under s 139A was satisfied in relation to the applications preventing removal of the children or for the guardianship direction.² He did consider there had been a material change in circumstances in relation to agreeing the father’s contact arrangements with the children once they are in California. Judge Maude set down a further hearing on 18 August 2016 regarding

_{those conditions of contact.}

² Kibble v Lambda, above at [93].

[9] On 25 July 2016 the father filed a notice of appeal of Judge Maude’s decision in the High Court, together with a without notice interlocutory application for a stay of enforcement of the decision pending appeal. Duffy J determined that the interlocutory application should not be considered on a without notice basis.

[10] On a call of the matter on 27 July 2016, in the duty list, the mother objected to the High Court’s jurisdiction. Duffy J directed that the jurisdiction issue be argued before the duty judge, including whether the appeal requires leave and from which Court. I heard argument about the jurisdiction issues on 4 August 2016. Duffy J also appointed counsel for the children who appeared but did not offer substantive argument about the jurisdiction issues.

Law

The Care of Children Act

[11] Section 3(1) of the Act provides that its purpose is to:

(a) promote children’s welfare and best interests, and facilitate their development, by helping to ensure that appropriate arrangements are in place for their guardianship and care; and

(b) recognise certain rights of children.

[12] To that end s 3(2) of the Act, among other things, states that it “encourages agreed arrangements for, and provides for the resolution of disputes about, the care of children”. Section 4 of the Act states that “the welfare and best interests of a child in his or her particular circumstances must be the first and paramount consideration” in proceedings under the Act.

[13] Part 3 of the Act is headed “Jurisdictional, procedural, miscellaneous, and saving and transitional provisions”. Section 125 provides that proceedings must be heard and determined in a Family Court unless certain conditions apply which are not relevant here. I note that the High Court and Family Court have concurrent jurisdiction in relation to, for example, certain guardianship matters under s 30, and preventing a child from being removed from New Zealand under s 77.

Sections 139A and 143

[14] Under the heading “procedural provisions”, s 139A of the Act states:

139A Leave required in certain cases to commence substantially similar proceedings

(1) A proceeding (a new proceeding) may not be commenced under section 46R, 48, or 56 without the leave of the court if that new proceeding—

(a) is substantially similar to a proceeding previously filed in a

Family Court by any person (a previous proceeding); and

(b) is to be commenced less than 2 years after the final direction or order was given in the previous proceeding.

(2) The leave of the court may only be given under subsection (1) if, since the final direction or order was given in the previous proceeding, there has been a material change in the circumstances of—

(a) any party to the previous proceeding:

(b) any child who was the subject of the previous proceeding.

(3) In this section, a new proceeding is substantially similar to a previous proceeding if—

(a) the party commencing the new proceeding was a party to the previous proceeding; and

(b) a child who is the subject of the new proceeding was the subject of the previous proceeding; and

(c) the new proceeding—

(i) is commenced under the same provision of this Act as the previous proceeding; or

(ii) is for an order varying the order made in the previous proceeding; or

(iii) is for an order discharging the order made in the previous proceeding.

(4) This section does not apply if every party to the new proceeding consents to its commencement.

[15] Section 139A was inserted by s 33 of the Care of Children Amendment Act

(No 2) 2013. In conjunction with other amendments, it was intended to discourage

parents and caregivers from challenging concluded matters and to encourage parents to resolve matters themselves where possible.

[16] Section 143 provides, relevantly:

143 Appeals to High Court

(1) This subsection applies to a decision of a Family Court or District Court, in proceedings under this Act (other than criminal proceedings), 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, or a child to whom those proceedings relate, may appeal to the High Court against the decision. However, if the proceedings are under section 46C or 46R, the party or child may appeal only with the leave of the High Court.

(3) A party to proceedings under this Act in a Family Court or District Court in which an interlocutory or interim order is made, or a child to whom those proceedings relate, may, with the leave of the Family Court or District Court (as the case requires), 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:

(i) criminal proceedings; or

(ii) proceedings under section 46C; or

(iii) proceedings under section 46R; or

(b) a decision under—

(i) section 7 to appoint, or to direct the Registrar of the court to appoint, a lawyer to represent a child; or

(ii) section 130 to appoint, or to direct the Registrar of the court to appoint, a lawyer to assist the court; or

(iii) section 133 to obtain a written cultural report, medical report, psychiatric report, or psychological report; or

(c) a direction under section 7A(6) that the parties may, or may not, be represented at a settlement conference.

(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.

[17] Section 143(3) was carried over from s 31 of the Act’s predecessor

legislation, the Guardianship Act 1968.

Interlocutory applications

[18] The key issue here is whether Judge Maude’s decision to deny leave under s 139A constitutes an “interlocutory application” for the purposes of s 143(1)(a) which, in turn, must be interpreted in light of the purpose of the Act.

[19] There are few a references to “interlocutory” applications in the Family Court

Rules, though they do not determine the construction of the statute:

(a) Rule 8: “an application in... intended proceedings for an order of a direction relating to a matter of procedure or, for some relief ancillary to the orders or declarations sought in the... intended proceedings”.

(b) Rule 215(1): “[t]his Part sets out procedures for dealing with interlocutory matters (that is matters arise in the course of proceedings)”.

[20] Section 2 of the Judicature Act 1908 defines “interlocutory application”, for the purposes of High Court procedure, as follows:

interlocutory application—

(a) means any application to the court in any civil proceedings or criminal proceedings or intended civil proceedings or intended criminal proceedings for an order or a direction relating to a matter of procedure or, in the case of civil proceedings, for some relief ancillary to that claimed in a pleading; and

(b) includes an application for a new trial; and

(c) includes an application to review an order made, or a direction given, on any application to which paragraph (a) or paragraph (b) applies

[21] These references all reflect the generally understood meaning of

“interlocutory” at law which is found in law dictionaries such as:

(a) Oxford Dictionary of Law: "during the course of proceedings".³

(b) Black's Law Dictionary: "interim or temporary; not constituting a final resolution of the whole controversy."⁴

[22] However, argument is possible over the exact meaning of “interlocutory” in particular legal contexts. In 1990, in Re Fidow, ex parte Registered Securities Ltd (In Liquidation), Thomas J noted that the test was the subject of some judicial difference before 1986 which focused either:⁵

(a) on the nature of the judgment or order made, and therefore whether order finally disposed of the rights of the parties; or

(b) on the nature of the application and whether the court’s decision would finally dispose of the matter in dispute whichever way the decision went, or not.

[23] Thomas J found that an application for summary judgment was interlocutory because:⁶

The essential issue in that application is whether the Court is satisfied the defendant has no defence. If it is satisfied that there is no valid defence it enters judgment for the plaintiff, but it does so on the basis of its resolution of that issue and not the statement of claim as such. Similarly, an appeal against the summary judgment is essentially an appeal against the decision of the Court that it was satisfied that the defendant had no defence. It may well be that, if the defendant is not successful in reversing the decision on appeal, the judgment is final. It may also happen that, say, a point of law is

³ Jonathon Law (ed) Oxford Dictionary of Law (8^th ed, Oxford University Press, Oxford, 2015) at

_331.

⁴ Bryan A Garner (ed) Black’s Law Dictionary (10th ed, Thomson Reuters, St Paul (Minnesota),

_{2014) at 938.}

⁵ _{Re Fidow, Ex parte Registered Securities Ltd (In Liquidation) (1990) 3 PRNZ 66 (HC).}

⁶ At 70.

involved which is definitive of the parties' rights. But these issues are subsidiary to or the consequence of the application and the Court's finding that the defendant has no defence.

Submissions

[24] Here Ms Stevenson, for the father, submits the application under s 139A is not an interlocutory application because the application under s 139A stands independently of the variation issue that is still pending in the Family Court. The requirement for leave is provided by statute, not because of any procedural preliminary matter. She also emphasises that, once the mother and children move to California, this Court’s jurisdiction will end. She says that analogies with other provisions in the Act are limited.

[25] Ms Homes, for the mother, submits that the s 139A application must be procedural. She says it falls under part 3 of the Act entitled “jurisdiction, procedural and miscellaneous provisions”. She submits it is ancillary to the intended proceedings so it fits within the r 8 definition. It was an argument about leave, not about the substantial merits. The leave proceedings never had life of their own but were intended proceedings that never got off the ground. Ms Homes says it is not correct that Judge Maude’s decision is the end of the matter because the father can seek leave from the Family Court to appeal to the High Court. She says Ms Stevenson’s argument undermines the purpose of s 139A in enhancing finality of

Family Court decisions. She relies on BLH v MNL,⁷ Barker v Cargill,⁸ and FJFB v

TW.⁹ Alternatively, even if it is an interlocutory application, Ms Homes submits that the matter has yet to be finally determined. That means, in terms of s 143(1)(c), the appeal provision does not apply. This is because there is a further hearing in the Family Court of the terms of the father’s contact on 18 August 2016.

Analysis

[26] The question of whether an application under s 139A is an “interlocutory application” for the purposes of s 143(1) is a question of statutory interpretation that

_{must be approached in light of the purposes of the Act.}

⁷ _{BLH v MNL [2014] NZHC 194.}

⁸ _{Barker v Cargill [2007] NZFLR 1108.}

⁹ FB v TW and HM [2015] NZHC 2129.

[27] The Act ascribes an important specialist role to the Family Court to interpret and apply the Act. Section 143 of the Act provides for appeals to the High Court. This is presumably for the usual reasons of providing a mechanism for ensuring that decisions are correct and in accordance with law.¹⁰

[28] Importantly, s 143 is limited so as to exclude interlocutory or interim orders from being appealed as of right. The limitation avoids the proliferation of litigation. Procedural litigation, which is quintessentially interlocutory, can be used as a weapon to delay or deter an expected or feared substantive outcome. The evident purpose is to prevent endless procedural wrangling that does not “finally determine the proceedings”, in the words of s 143(1)(c), and that may not promote children’s welfare and interests.

[29] The mechanism used is to confer on the Family Court, which will be in the best position to know, the discretion as to whether interlocutory decisions may be appealed. By contrast, s 143 provides for appeal from the Family Court to the High Court as of right in relation to decisions which do finally determine proceedings. This is the context within which “interlocutory application” is to be interpreted.

[30] The ordinary meaning of the words of r 8 could be thought to encompass a s 139A application. An application for leave to vary previous directions is “a matter of procedure” and seeks “relief ancillary to the orders sought” in the previous proceedings. But I consider that that would be an unduly formalistic interpretation which would take insufficient account of the purpose of the Act.

[31] As counsel for both parties acknowledged, an application under s 139A is characterised by s 139A(1) itself as “a new proceeding” in distinction to the “previous proceeding” to which it is similar. A decision on the application under s 139A disposes of, and finally determines, the new proceeding unless appealed. It constitutes “a final resolution of the whole controversy” in the words of Black’s Law Dictionary. Here, it determines whether the children will be relocated from New

_{Zealand to California or not.}

¹⁰ Legislation Advisory Committee, LAC Guidelines: Guidelines on Process and Content of

Legislation (2014) ch 25.

[32] If the decision were characterised as an interlocutory application the substantive outcome of the new proceeding would not be able to be appealed as of right. That seems to me to be antithetical to the purpose of s 143(1) in distinguishing between interlocutory or interim orders, which require the leave of the Family Court to be appealed, and decisions which “finally determine” proceedings, which can be appealed as of right.

[33] I acknowledge that my decision is different from that of Thomas J in Re Fidow in relation to summary judgments. But that was a different context with a different, wider, statutory purpose. Here, while one of the purposes of the 2013 amendments was to limit the proliferation of litigation, it was not to limit the High Court’s ability to ensure that the substantive outcome of a proceeding is correct and made according to law.

[34] Neither are the authorities regarding s 143, on which Ms Homes relies, inconsistent with my decision:

(a) Fogarty J, in BLH v MNL, held that a finding of violence was not able to be appealed as of right.¹¹ Fogarty J’s reasoning, that the purpose of s 143(1) “is to allow appeals only of final determination of the proceedings” is consistent with my decision.

(b) Baragwanath J, in Barker v Cargill, held that a grant of leave to grandparents to apply for a parenting order was not able to be appealed as of right.¹² But, as Baragwanath J held, that decision was procedural and did not impact upon the welfare and best interests of the child.¹³ The same applies to FB v TW and HM which concerned the same sort of decision.¹⁴

[35] Ms Home’s alternative argument also fails. The further hearing on 18 August

_{2016 is entirely independent of the applications in respect of which appeal is sought.}

¹¹ _{BLH v MNL, above n 7.}

¹² _{Barker v Cargill, above n 8.}

¹³ _{At [8] and [9].}

¹⁴ FB v TW and HM above n 9.

The two matters concern different things, almost by definition, as Judge Maude’s

judgment makes clear.

[36] The limitation on appeal rights in s 143 is not to be applied with technical legalism but in accordance with the context and purpose of s 143 in limiting appeals to decisions that finally determine a matter, rather than decisions that arise along the way in the course of doing so.

[37] Because of my holding that the High Court has jurisdiction to hear the appeal, it also has jurisdiction to hear the application for a stay of enforcement of the Family Court judgment, under r 20.10(2)(b) of the High Court Rules. The Rules apply by virtue of s 143(4). I note the Family Court also has the power to order a stay under that rule.

Result

[38] I hold that the High Court has jurisdiction to hear the appeal and the application for an stay pending determination of the appeal. The Family Court hearing on Thursday 18 August 2016 may mean that the parenting orders become effective after that, so a hearing of the stay application in the High Court is urgent. Accordingly, I order:

(a) the application for an interim stay, pending appeal, be heard at 10 am

Monday 15 August 2016;

(b) brief submissions be filed and served by the appellant and respondent by 5 pm Wednesday 10 August and by 5 pm Friday 12 August respectively;

[39] I reserve leave for the parties to apply for variations of that timetable, preferably by joint memorandum.

Palmer J