Carney v Carney [2021] NZFC 5170

Published 17 June 2022

Application for leave — variation to parenting order — substantially similar proceedings — meaning of "proceedings" — welfare and best interests of children — COVID-19 lockdown — Alert Level status — Care of Children Act 2004, ss 4, 56 & 139A — Care of Children Amendment Act (No 2) 2013 — Interpretation Act 1999, s 5 — Family Court Rules 2002, rr 175, 175D, 179 & 416W — Pidgeman v Oliver [2015] NZFC 6585. The parties had been engaged in care and contact arrangement proceedings since 2014, with a final parenting order being granted in 2018. During the first nationwide COVID-19 Alert Level 4 lockdown, the applicant mother applied for an interim variation to the final parenting order, which was granted. Following the move to Alert Level 3 the respondent father applied on a without notice basis to discharge the variation order, which was declined. At Alert Level 2 the respondent applied again and was granted leave. The Judge hearing the second application by the respondent noted that there had been a material change of circumstances: namely, the move to Alert Level 2. In December 2020 the applicant filed a further application under s 56 of the Care of Children Act, but filed no application under s 139A. The proceedings came before various other judges before the Judge in the current hearing. The Judge considered the law change relating to applications which involved substantially similar proceedings, noting that the intention behind the law change was to prevent continual and repeated litigation for issues affecting a child or children. The two issues for determination were whether leave was required under s 139A and if so, whether leave should be granted. The Judge noted that the applicant had not filed a s 139A application in relation to her December 2020 application which was in fact required. However in the interests of the children's welfare and the unnecessary delay it would cause, the Judge would not direct that such an application be filed. The Judge determined that the applications filed in 2020 amounted to "proceedings" for the purpose of s 139A and that leave was required. In determining whether to grant leave, the Judge considered whether the application of December 2020 identified any material change of circumstances, just that the parties could not agree on a changeover location. Given the paramount consideration of the welfare and best interests, the Judge concluded that the disagreement about changeover location was not a new issue and did not warrant permitting the parties to go back to court. Leave pursuant to s 139A was declined. Judgment Date: 14 June 2021. * * * Note: names have been changed to comply with legal requirements. * * *