Hill v Fruean
| Jurisdiction | New Zealand |
| Judge | Ellis J |
| Judgment Date | 04 April 2014 |
| Neutral Citation | [2014] NZHC 682 |
| Docket Number | CIV-2013-404-004824 |
| Court | High Court |
| Date | 04 April 2014 |
Under The Status of Children Act 1969
And
Family Proceedings Act 1980
In the Mattern of an appeal in the Family Court at Auckland
[2014] NZHC 682
CIV-2013-404-004824
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
Application for review of a decision of the defendant changing the eligibility criteria for residents' parking permits which meant that tenants of the plaintiff's apartments were no longer eligible for such permits — the residents remained eligible to apply for coupon parking exemption permits — consultation documents were sent to residents and placed on windscreens — documents were not sent to the landlords of affected buildings — the decision was made in 2010 — the building had been constructed in 1926 and had been converted into residential apartments in 1997- whether the defendant failed to consult with the plaintiff about the change in eligibility — whether the defendant had failure to consider the proper scope of a heritage listed residential buildings exception — whether relief should be declined on the basis of delay.
G M Cameron for the Appellant
E B Parsons for the Respondent
RESERVED JUDGMENT OF Ellis J
Mr Hill seeks to appeal a recommendation made by the Family Court that he undergo a paternity test. Ms Fruean says that such recommendations are not appealable and that this Court therefore has no jurisdiction in the matter.
Ms Fruean has brought proceedings in the Family Court seeking a declaration under s 10 of the Status of Children Act 1969 (the SCA) that Mr Hill is the father of her adult son. Section 10 provides:
10 Declaration as to paternity
(1) In this section, eligible person means a person-
(a) who is a woman and who alleges that a named person is the father of her child; or
(b) who alleges that the relationship of father and child exists between the person and another named person; or
(c) who wishes to have it determined whether the relationship of father and child exists between 2 named persons, and has a proper interest in the result.
(2) A Family Court or the High Court may make a declaration of paternity (whether the alleged father or the alleged child or both of them are living or dead) if-
(a) an eligible person applies to the Court for the declaration; and
(b) it is proved to the Court's satisfaction that the relationship exists.
(3) A Court considering an application under subsection (2) may, either on its own initiative or on an application for the purpose by a party to the proceedings, make a declaration of non-paternity (whether the alleged father or the alleged child or both of them are living or dead) if it is proved to the Court's satisfaction that the relationship does not exist.
(4) If a declaration of paternity under subsection (2) is made after the death of the father or of the child, the Court may, at the same or any later time, make a declaration determining, for the purposes of section 7(1)(b), whether any of the requirements of section 7(1)(b) have been satisfied.
(5) If an application under subsection (2) is made-
(a) to a Family Court, the provisions of the Family Proceedings Act 1980 (except sections 47 to 50) apply to the application as if it were an application for a paternity order under section 47 of that Act:
(b) to the High Court, the provisions of the Declaratory Judgments Act 1908 apply to the application.
(6) Every question of fact that arises in applying any of subsections (2) to (4) must be decided on a balance of probabilities.
Because the application was made to the Family Court rather than to this Court, it is, in general terms, governed by the Family Proceedings Act 1980 (the FPA). And in the present case the Family Court has made a recommendation under s 54 of the FPA that a parentage test be carried out on Mr Hill and Ms Fruean's son. 1 Section 54 relevantly provides:
54 Parentage tests
(1) In any civil proceedings (whether under this Act or not) in which the parentage of a child is in issue -
(a) The Court may, of its own motion or on the application of a party to the proceedings, recommend that parentage tests be carried out on-
(i) The child; and
(ii) Any person who may be a natural parent of the child
-
and that a report of the results be compiled, by a person who is qualified to compile such a report, and submitted to the Court; and
(b) Whether or not the Court has made a recommendation under paragraph (a) of this subsection, the Court may, of its own motion or on the application of a party to the proceedings, adjourn the proceedings in order to allow time for such parentage tests to be carried out and for such a report to be compiled and submitted to the Court.
As I have said, counsel for Ms Fruean has challenged this Court's jurisdiction to hear an appeal from such a recommendation. The basis on which she does so is that s 174 of the FPA does not permit such appeals. That section relevantly provides:
(1AA) This subsection applies to a decision of a Family Court or District Court, in proceedings under this Act (other than criminal proceedings or proceedings under section 130), to-
(a) make or refuse to make an order; or
(b) dismiss the proceedings; or
(c) otherwise finally determine the proceedings.
(1) A party to proceedings in which there is made a decision to which subsection (1A) applies, or any other person prejudicially affected by the decision, may appeal to the High Court against the decision.
(1A) The High Court Rules and sections 74 to 78 of the District Courts Act 1947, with all necessary modifications, apply to an appeal under subsection (1) as if it were an appeal under section 72 of that Act.
…
Although on the face of subs (1AA), s 174 applies only to proceedings under the FPA, it governs appeals in proceedings such as the present, by virtue of s 10(5)(a) of the SCA (above). By virtue of that provision, an application for a declaration of paternity under s 10 is deemed to be an application for a paternity order under the FPA. 2
Ms Parsons for Ms Fruean challenges this Court's jurisdiction to hear Mr Hill's appeal on the grounds that a recommendation made under s 54 does not constitute an “order” in terms of s 174(1AA)(a) and thus cannot be appealed.
Before considering the issue of jurisdiction in more detail, however, it is necessary to say a little more about the factual context. It is somewhat unusual.
As I have said, Ms Fruean's son, in respect of whom she seeks the declaration of paternity, is now an adult. He was born in 1987. Indeed, he now has a child of his own. He supports his mother's application and, indeed, would have standing under s 10 to apply himself.[9] In 1995, Ms Fruean made an application under the SCA s 10 for a declaration that Mr Hill was her son's father. The Family Court made a s 54 recommendation that a blood test be carried out on the child and on Mr Hill in that context. 3
On that occasion Mr Hill followed the recommendation and took the test. The result was that he was said to have a zero per cent chance of being the boy's father.
In the years that followed, it seems that the Family Court file relating to those proceedings has been lost. Counsel's files are also missing. It is accordingly not known whether Ms Fruean's s 10 application was formally abandoned at that point or whether the matter just lapsed. But it is not in dispute that the results of the test on that occasion were indeed negative.
When the present, new application was brought by Ms Fruean, Mr Hill challenged it on the grounds of res judicata. That issue was considered and rejected by Judge Maude in September 2011. 4 No appeal was filed against that decision.
The basis on which the fresh application has been advanced by Ms Fruean is that there were various flaws in the testing processes adopted on the earlier occasion and, she says, there is a real risk that the relevant sample taken from Mr Hill was contaminated. 5 The specific allegations by Ms Fruean were fully canvassed by Judge Burns in his judgment dated 11 October 2013. 6 He concluded:
[60] I certainly am fully aware of the significance of the outcome of this case for both parties and child. I have given considerable consideration to the facts of the case which are unique. I have reached the conclusion however because of the findings that I have made that the justice of the situation is best met by requiring the parties and the child (now an adult) to undergo a further DNA diagnosis in appropriately controlled circumstances to ensure the reliability of the outcome. I need to stress that the findings in this case are not to be regarded as any adverse comment on the expertise, reputation or experience of the three professionals involved in this case who have kindly provided evidence. I consider that the problems largely stemmed from the misunderstanding between the two lawyers as to which of the two laboratories were to provide the analysis. The instructions from Ms Southwick's firm meant that the respondent it appeared went to the wrong
laboratory. There were significant delays which caused issues of itself. Those delays have led to suspicion. If I do not order a further test the applicant will continue to harbor (sic) a strong sense of injustice for the rest of her life. It is likely that her son will also harbor (sic) that sense of injustice. This will fester away and be destructive. Whilst I understand that the respondent will feel a sense of injustice at the outcome to a large extent the situation remains within his control. If he is convinced as he says he is to the Court that the 1995 test results were reliable there should...
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