BLH v MNL
[2014] NZHC 2429
•24 September 2014
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 COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-001668 [2014] NZHC 2429
UNDER the Care of Children Act 2004 IN THE MATTER OF
an appeal under section 143 Care of
Children Act and section 72, District Courts Act 1947
BETWEEN
BLH Appellant
AND
MNL Respondent
Hearing: 23 and 24 September 2014 Counsel:
G E Whiteford for the Appellant
J E McLennan for the Respondent
J R Robertson for the ChildJudgment:
24 September 2014
(ORAL) JUDGMENT OF DUFFY J
[Re Application to Adduce Fresh Evidence]
Counsel: J R Robertson, Auckland
Solicitors: Davenports City Law, Auckland
Holmden Horrocks, Auckland
BLH v MNL [2014] NZHC 2429 [24 September 2014]
[1] Towards the end of the appellant’s submissions yesterday, concerns were raised by the respondent and by counsel for the child regarding the appellant’s reliance on certain material. This material is in the form of an article in the New Zealand Law Journal titled “Is 50/50 shared care a desirable norm following family separation? Raising questions about current family law practices in New Zealand”. The article is by Julia Tolmie (Associate Professor, Faculty of Law, Auckland University), Dr Vivienne Elizabeth (Department of Sociology, University of Auckland) and Associate Professor Nicola Gavey (Department of Psychology, University of Auckland). Another article by the same authors that the appellant sought to rely on is also published in the New Zealand Law Review; it is titled “Raising questions about the importance of father contact within current family law practices”. There is also a book titled “The batterer as parent: Addressing the impact of domestic violence on family dynamics”. The authors are Lundy Bancroft, Jay G Silverman and Daniel Ritchie. The appellant seeks to rely on excerpts from the book: part of chapter 1; chapter 5; part of chapter 6; and chapter 8.
[2] The respondent and counsel for the child have a number of complaints about the above material. In short, it is said that all or some of it is in the nature of fresh evidence and, accordingly, it should not be admitted on appeal. Further, no formal written application to adduce this fresh evidence was filed prior to the hearing of the appeal.
[3] The result of the respondent’s and counsel for the child’s objections yesterday was that this morning the appellant made an oral application to adduce the material to which I have referred as fresh evidence on appeal.
[4] The first hurdle that the appellant faces is that the application is being made in the course of the appeal and it is made orally.
[5] Appeals in this Court from the Family Court are subject to the High Court Rules: see Air New Zealand Ltd v Commerce Commission (2005) 17 PRNZ 786 (HC). Accordingly, r 7.41 of the High Court Rules is relevant here. That rule allows for certain applications to be made orally at a hearing.
[6] There are four circumstances in which an oral application for an interlocutory order may be made. The first is by consent, but here, there is no consent. The second is where the rules permit an application to be made without filing a notice of the application. That does not apply here. The third is where the order as sought has been outlined in a memorandum filed for a case management conference, and no party will be unduly prejudiced by the absence of a formal notice of the application. That does not apply here. The last is, because of the nature of the order sought, no party will be unduly prejudiced by the absence of a formal notice. This is the circumstance relied upon here.
[7] The appellant argues that the material is not prejudicial. The appellant says that at some time in August, she served submissions on the other parties, which they objected to on the basis that the submissions were too long. Those submissions contained extensive references to the writings of Bancroft, Silverman and Ritchie, and the articles by Tolmie and others. The present submissions also contain more limited references to this material. The appellant argues that, in this way, the other parties had clear notice that she would be relying on the material. She says that the respondent requested copies of the articles be sent through, and they were. It seems that just recently, a copy of the Bancroft and others’ book, or excerpts from that book have been provided to the respondent. It is said that the authors are reputable and that the material speaks for itself.
[8] The appellant also sought to rely on r 1.7, which is a rule that allows oral applications for relief:
1.7 Oral applications for relief
(1) A Judge may grant relief on an oral application if the case is urgent and the interests of justice so require.
(2) This rule applies despite any rule requiring a written application. (3) Relief may be granted on terms and conditions considered just.
[9] The respondent submits that the present application does not fall within that category of applications provided by in r 7.41, where an oral application may be made because the nature of the application will not be unduly prejudicial to other parties.
[10] The respondent submits that there is no information as to the reliability of the articles; they are simply an opinion of the authors. Insofar as the articles and the book are written by psychologists, the respondent argues that the views of psychologists may differ. The respondent contends that the articles predate the second Family Court hearing and, therefore, they could have been referred to the psychologist, Ms Cameron, when she gave evidence in the Family Court. They could also have been referred to in submissions to the Family Court Judge. The respondent complains that the issue has arisen now, half-way through the appeal, and is prejudicial in the sense that the appellant is shortly to close her case. The respondent will then be expected to make his submissions. So he will not be in a position to deal with the material. He acknowledges that if the material were to be admitted, there would need to be an adjournment. He points to the fact that this proceeding has been before the Family Court twice, and this is the second time it has been before this Court on appeal. He relies, therefore, on the need for finality, and asserts that it is now too late to introduce this new material.
[11] Counsel for the child submits the material should not be admitted. She has not made submissions on the procedural irregularities and difficulties the appellant faces, but says that in a substantial way, the material is not helpful. She submits that the Court cannot interpret the material. It can read it, but this is a situation where general comment and research has been made on the way in which care of children and family violence issues are dealt with in the Family Court. She submits, in essence, that the material is too general to be applied to the specific circumstances of this case by a Court on appeal; that the appropriate way of getting it before the Court would have been for the research material to have been put to Ms Cameron when she gave evidence in the Family Court. Ms Cameron is the Court-appointed psychological expert in the present case; she is the person who has looked at the evidence, interviewed the parties, and interviewed the child. It is submitted that Ms Cameron is the best person to take the information from the particular case and, to use counsel for the child’s words, “triangulate the specific information with the more general research information contained in the articles and the book”.
[12] Counsel for the child also submits that there were other articles from psychologists in the care of children field before the Court in the Family Court hearing, and some aspects of those articles were put to Ms Cameron.
[13] In reply, the appellant recognises that the Bancroft publication is not a legal text, but says that the two articles by Tolmie and others contain information that may be relevant in a legal sense and could be relied on by the Court in much the same way that the Court might consider legal periodicals when looking at the application of legal principles. The appellant has not, however, undertaken the task of extracting from the articles those aspects dealing with legal principles from those that involve comment on psychological research relating to care of children arrangements.
[14] I have asked the appellant to identify the particular issue for which the fresh evidence is sought. She advises me that the Tolmie articles are relevant to the application of principle 5 in the Care of Children Act 2004. I understood it to be principle 5(e), which I think is now to be found in principle 5(a). That principle provides that:
A child's safety must be protected and, in particular, a child must be protected from all forms of violence (as defined in section 3(2) to (5) of the Domestic Violence Act 1995) from all persons, including members of the child's family, family group, whanau, hapu, and iwi.
[15] It is submitted that when the Court considers the application of that principle, it will be guided in determining the optimum care arrangements where there is a relationship with serious conflict between the parents by the material in the Tolmie and others’ articles.
[16] Regarding the Bancroft book, the issue that it addresses, it is submitted, refers to the care that needs to be taken in assessing violence, the likelihood of violent perpetrators in terms of their current and future risk of children, and the steps to be taken by “batterers” to address behaviour, so that they can assure the Court that they can be safe and nurturing parents.
[17] The respondent contends that it is still not clear what the issue is. Counsel for the child is of the same view. It is submitted that the Bancroft book may go to
the findings on violence by the Family Court last year (under what was then s 60 of the Care of Children Act 2004), and to the psychological risk assessment. But the concern is expressed that there are difficulties in “orienting” the fresh evidence to the circumstances of this particular case.
[18] Now the first step is to decide whether there needed to be an application to adduce fresh evidence. Material such as legal articles and law reports are referred to by counsel in their submissions, to persuade a Judge to adopt a particular view of the law, relevant legal principles and how they might be applied. References to material in that way is not the admission of evidence in a case.
[19] However, s 129 of the Evidence Act 2006 provides for the admission of reliable published documents and states that:
129 Admission of reliable published documents
(1) A Judge may, in matters of public history, literature, science, or art, admit as evidence any published documents that the Judge considers to be reliable sources of information on the subjects to which they respectively relate. (emphasis added)
[20] In my view, the Bancroft book falls clearly within the category of material referred to in s 129. It is not being referred to me as a source of comment on legal principles, or case law. It has been given to me to provide me with what is asserted to be a reliable source of information on the topic of how in this case I might factually go about assessing violence, and the type of care that needs to be taken in the assessment of violence. I expect I would be asked to apply this information when I came to look at how the Family Court assessed violence in this matter, and also to consider the likelihood of violent perpetrators, and their current and future risks to children. It seems to me the Bancroft book falls squarely within s 129. As it is treated as evidence, for there to be any reference to it in an appeal, if it had not already been referred to in the court of first instance, there would first need to be an application to adduce fresh evidence.
[21] Regarding Tolmie and others’ articles, I have not yet had the opportunity of reading those articles. So it is not clear to me how much of the articles contain information on the psychological and sociological aspects of parenting
arrangements, particularly where there is a violent parent, and to what extent the articles might in fact cover legal principles relevant to the Care of Children Act, and how those principles have been and might be applied. The appellant has also not had the opportunity to read the articles in this way and so has not been able to go through them referring me to parts that would fall outside the scope of s 129.
[22] It is not satisfactory, but it seems to me the best approach in this circumstance, given the way the matter has arisen before me, is for me to rule that the parts of the articles that relate to information of a non-legal type fall within s 129. So, unless they can be admitted as fresh evidence on appeal, it would not be open to me to consider them. But insofar as those articles refer to legal principles relating to the Care of Children Act and to relevant case law, and legal principles including legal commentary on those matters, it seems to me the article is no different from any other legal article that might be found in the New Zealand Law Review and to which this Court might be referred. I do not, therefore, propose to exclude those articles entirely, but insofar as I look at them, I will only do so relating to legal matters.
[23] When it comes to dealing with the material that I have found to be within the scope of s 129, and therefore, requiring an application for leave to adduce fresh evidence, the application fails.
[24] The application fails, first, because it has not been properly brought. It does not fit within any of the categories in r 7.41 for the making of an oral application at a hearing.
[25] I accept the arguments of counsel for the respondent and counsel for the child that the material is highly prejudicial to them. It is prejudicial for a number of reasons. To admit the material now without adjourning the hearing, and so giving them an opportunity to address it, would be a procedural unfairness. It would be a breach of natural justice because they would not have an opportunity to address material that was adverse to their case.
[26] Secondly, I consider that it would be substantially prejudicially unfair because they have not been given clear notice of the way in which the material would be sought to be used. I do not accept the appellant’s submissions that the filing of submissions, which are themselves rejected because they are too extensive, constitutes early notice of the appellant’s reliance on the material. Nor do I think that the references to certain excerpts in the submissions that were filed for the appeal can constitute sufficient notice. It was difficult to be able to categorise the material as evidence under s 129 in the first place. Parties who receive submissions for an appeal cannot be expected to read through those submissions and then do an analysis regarding whether there are evidential admissibility issues. Also, the lateness in which the material has come to a head means that the respondent and counsel for the child have had no opportunity in substance to address it today. The respondent has not read the Bancroft book, nor could he be expected to do so. Accordingly, the application fails under s 7.41.
[27] I do not consider that r 1.7 applies to the application. This is not a circumstance where the appellant has sought relief, which is the object of r 1.7.
[28] This Court does have an inherent jurisdiction. I can accept that in circumstances where material is particularly cogent, and there is a strong need in the interests of justice to admit the material, that the Court might fall back on the use of its inherent jurisdiction, even though it is dealing with a statutory appeal. However, this material does not pass that test. There is nothing in it that persuades me that it is reliable, or materially cogent to the issues that I have to determine. In saying that, I am not saying it is unreliable. I simply do not know because I do not have enough information before me.
[29] I agree with the respondent and counsel for the child that the appropriate way of going about introducing this material into the case would have been to have raised it in the Family Court – the material was readily available then – and to have cross- examined the psychologist, Ms Cameron. That way, the Court would have had the benefit of an expert psychologist’s view on whether, insofar as the material contains the writing of psychologists, it is seen as reliable; whether it fits with generally accepted theories; and whether there is any controversy associated with the theories
the authors advance. Without that type of comment from an expert in the field, I am not, as counsel for the child has pointed out, in a position to be able to assess and weigh the material to be able to see if it is helpful, let alone attempt to apply it to the circumstances at hand. Judges will apply expert material to the circumstances, but that is when they have been assisted by expert evidence in the case, and where they have had the benefit of hearing experts comment on that evidence. Without that, I am at a loss as to how to use the material.
[30] The usual tests for the admission of fresh evidence on an appeal are set out at r 20.16. The case law that applied to the former r 7.16 are still relevant. Before leave will be granted, the Court must be satisfied that there are special reasons for hearing the evidence. Leave is more easily obtained where the evidence relates to once contentious matters arising after the date of the decision being appealed.
[31] The discretion is described as one that is to be sparingly exercised and the presumption is that appeals will be heard on the record as it exists. In order to satisfy the test, the evidence must be cogent and likely to be material and could not reasonably have been produced at first instance: see Comalco New Zealand Ltd v Television New Zealand Ltd (1996) 10 PRNZ 573 (HC), and Rugby Union Players’ Association Inc v Commerce Commission [1997] 3 NZLR 79 (HC). Whilst the Court under r 20.16 has a discretion, it is a judicial discretion that must be exercised in a principled way: see Complaints Committee No 1 of the Auckland District Law Society v P (2007) 18 PRNZ 760 (HC).
[32] Accordingly, when I take the principles for admission of fresh evidence on appeal into account, even if a formal application had been made before this appeal so that there were no difficulties in terms of procedure, my view is that this application would have failed the settled test for the admission of fresh evidence on appeal. The evidence was reasonably available at the time of the hearing. It is controversial evidence in that the respondent, and perhaps counsel for the child, would want to address the evidence. If it were to be admitted, it would necessarily involve this appeal being adjourned, with timetable orders being made to allow the respondent and counsel for the child the opportunity to file evidence in response.
[33] The present circumstances are comparable to the application in LH v MMM-P HC Auckland CIV-2007-404-006512, 13 December 2007, which also is a decision under the Care of Children Act. In that case, the appellant wanted to adduce evidence, which was in the form of an affidavit, from a registered clinical psychologist. The affidavit addressed the risk of harm to the appellant and, through her, to the child if there was a return to Germany – this was a Hague Convention case. The report was not admitted. It had not been adduced at the hearing in the Family Court. There was no explanation as to why the evidence, which would have been available before the Family Court hearing, was not produced then. At [14], it is said:
The problem for the appellant in terms of the reasonable availability of the expert evidence arises here and not subsequently. I find it hard to imagine why such evidence was not obtained given the reliance on the risk of psychological harm to V as a ground to resist his return to Germany. For this reason I find that the fresh evidence now sought to be adduced does fall into the category of evidence that was reasonably available for the Family Court hearing. The fresh evidence fails the standard test for admission under r 7 16.
In that case, the psychologist’s evidence was found to be cogent and likely to be material to the resolution of the appeal in issue. I have already expressed the view that I do not find the material in the present case to fit that category.
[34] In LH v MMM-P, as the psychologist’s evidence was found to be cogent and likely material, it was said that it met one of the standard tests for admission, but failed the other. In terms of assessment, it was said, at [16]:
When I stand back and look at this case in terms of its particular circumstances, I can see no basis for granting leave to adduce the evidence of Mr Rostevo. This is because the evidence is likely to be contentious and disputed by the respondent. Its introduction would require the respondent to be given the opportunity to file evidence in rebuttal. I also anticipate that the respondent would want to cross-examine Mr Rostevo, given the references in his evidence to treatment the appellant is alleged to have suffered at the hands of the respondent. I have no doubt that the admission of Mr Rostevo’s evidence would result in the appeal being turned into a new case, which is the very event to be avoided. I find, therefore, that there is no proper ground for admitting the evidence of Mr Rostevo and, accordingly, leave to do so is declined.
[35] The point about the admission of Mr Rostevo’s evidence turning the appeal
into a new case is material here. I consider that if the material of Bancroft, and the
psychological aspects of the Tolmie articles were admitted as fresh evidence, it would have the effect of turning the appeal into a new case, if procedural fairness were also to be complied with, which it would have to be.
[36] It follows, therefore, that, in my view, there are a multiplicity of reasons for declining the application.
Duffy J