BLH v MNL - [2014] NZHC 2429

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 Child

Judgment:

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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BLH v MNL

Details

AGLC: BLH v MNL [2014] NZHC 2429
Case: [2014] NZHC 2429
Decision Date: 24 September 2014

CaseChat Overview and Summary

In BLH v MNL, the appellant, BLH, sought to appeal a decision made by the Family Court regarding the care of children. The respondent, MNL, and counsel for the child objected to BLH's reliance on certain material, including articles and a book, as fresh evidence on appeal. The legal issues before the court were whether the material could be admitted as fresh evidence on appeal, and if not, whether the application to adduce the material was properly brought. The court held that the material was within the scope of section 129 of the Evidence Act 2006, which allows for the admission of reliable published documents. However, the application to adduce the material as fresh evidence failed because it had not been properly brought, and it would have been substantially prejudicial to the respondent and counsel for the child to admit the material without an adjournment. Furthermore, the court found that even if a formal application had been made before the appeal, the application would have failed the settled test for the admission of fresh evidence on appeal, as the evidence was reasonably available at the time of the hearing, and its admission would have turned the appeal into a new case.

The court declined the application to adduce the material as fresh evidence on appeal, and ruled that the parts of the articles that related to information of a non-legal type fell within section 129, but would not be considered. The court held that the material did not pass the test for reliability, materiality, and cogency required for the admission of fresh evidence on appeal. The court also held that the appropriate way of introducing the material into the case would have been to raise it in the Family Court and to cross-examine the psychologist, Ms Cameron, who could have provided expert evidence on the reliability and relevance of the material. Without such expert evidence, the court was unable to assess and weigh the material, and apply it to the circumstances of the case.

Orders