Fisher v Fisher - [2015] NZHC 2693

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-000574 [2015] NZHC 2693

BETWEEN
RICHARD IAN FISHER

Appellant

AND

RAEWYN DAWN FISHER Respondent

Hearing: 20 October 2015

Appearances:

R C Knight and T Kelly for the Appellant
V Crawshaw and J Wademan for the Respondent

Judgment:

2 November 2015

JUDGMENT OF NATION J

[1] The appellant (Mr Fisher) appeals against decisions of his Honour Judge Burns in the Family Court ordering both parties to file and serve a full list of documents and his refusal to transfer the proceedings to the High Court.1

[2] Mr Fisher had also made an application in the High Court for a stay of execution of the orders for discovery. That application for stay, by agreement, is also before the Court on the hearing of the appeal.

Approach on appeal

[3] Section 39 Property (Relationships) Act 1976 (PRA) provides a right of appeal against the Family Court making or refusing to make an order. Section 39(3) imports the High Court’s Rules and ss 74-78 of the District Courts Act 1947 as part
of the procedure on appeal. Pursuant to s 75, the appeal is by way of rehearing. I

1 Fisher v Fisher [2015] NZFC 1285.

FISHER v FISHER [2015] NZHC 2693 [2 November 2015]

am accordingly required to reconsider the Family Court’s decision and to substitute

my own view if I am satisfied the original Family Court decision was wrong.

[4] I must, however, also recognise any aspects of the Family Court decision which involve the exercise of a discretion. With regard to those aspects of the decision, the principles contained in May v May will apply:2

In considering an appeal of this kind, an appellant must show that the Judge acted on a wrong principle; or that he failed to take into account some relevant matter or that he took account of some irrelevant matter or that he was plainly wrong.

[5] A Family Court has a discretion as to whether it makes an order for discovery in relationship property proceedings which are before the Court.3 Although the rules require an order for discovery to be in a certain form, a Family Court Judge could, in his or her discretion, give directions as to the particular discovery required to enable the Court and the parties to more speedily and economically resolve the actual issues which are before the Court.4

[6] A Family Court Judge also has a discretion as to whether proceedings should be transferred to the High Court, although a Judge:5

… may order the transfer of proceedings to the High Court (only) if the Judge is satisfied that the High Court is the more appropriate venue for dealing with the proceedings.

[7] In considering whether or not to make such an order, the Judge must have regard to the matters referred to in s 38A(2) PRA.

[8] In this instance, the Judge’s decisions were reached on the basis of the Court record of the proceedings to date, the submissions of counsel…

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.

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Details

Case: [2015] NZHC 2693
Decision Date: 2 November 2015

CaseChat Overview and Summary

Richard Fisher appealed against two decisions of the Family Court in relation to his former wife, Raewyn Fisher. He challenged the Family Court’s order for both parties to provide a full list of documents for inspection and its refusal to transfer the proceedings to the High Court. The appeal was heard in the High Court. The Family Court’s order for full discovery was set aside and replaced with an order for more tailored discovery. The appeal against the Family Court’s refusal to transfer the proceedings to the High Court was dismissed and the proceedings remained in the Family Court. The High Court found that the Family Court had been correct in considering that the proceedings were not so complex as to require the High Court to be the more appropriate forum. The Family Court was satisfied that the issues which would need to be considered were ones that it dealt with on a daily basis and there was no evidence of a valid cause of action outside the Property (Relationships) Act 1976. The High Court also found that it was appropriate for the Family Court to determine the application to set aside the parties’ relationship property agreement before any other issues were heard. It was noted that the principles and policies of the Act supported the proposition that, where parties had reached an agreement with the benefit of independent advice, such agreements should not be lightly set aside. The proceedings would be ready for hearing as far as the application to set aside the agreement was concerned without too much delay. The parties were expected to cooperate to ensure that the application was brought on for hearing as soon as possible. The application for a stay of execution of the orders for discovery was dismissed. The parties were required to file memoranda in relation to costs.

Orders