Huntly v Hamilton - [2019] NZHC 1051

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,

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IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CIV-2019-416-3

[2019] NZHC 1051

UNDER The Care of Children Act 2004

BETWEEN

HUNTLY

Appellant

AND

HAMILTON

Respondent

Hearing: 11 April 2019

Appearances:

R Rao for Appellant

J Allen and W Zhang for Respondent

Judgment:

11 April 2019

ORAL JUDGMENT OF GRICE J

[Application to adduce further evidence on appeal]

Introduction1

[1] On 7 December 2018 the Family Court refused Mr Huntly an order for the return of his children, now aged 3 and 6 years, to Fiji pursuant to s 105 of the Care of Children Act.2 This is referred to as a Hague Convention case.

1 I delivered this decision orally but with the usual caution that the written decision would be subject to the grammatical flow and sense checks as well as the provision of the appropriate citations and the footnotes. Therefore, the written decision may differ slightly from that which I orally deliver but it will not do so in any material way.
2 [Huntly] v [Hamilton] [2018] NZFC 9577.

HUNTLY v MS HAMILTON [2019] NZHC 1051 [11 April 2019]

[2] Mr Huntly has appealed the decision. First, he says the Family Court erroneously preferred the evidence of Ms Hamilton in relation to whether there was an agreed relocation to New Zealand in 2017. Second, he argues the Family Court erred in finding that Fiji was not the habitual residence of the children immediately prior to their retention in New Zealand.

[3] Mr Huntly applied for further evidence to be admitted before this Court on appeal. The application is made under r 20.16 of the High Court Rules 2016:

20.16 Further evidence

(1)Without leave, a party to an appeal may adduce further evidence on a question of fact if the evidence is necessary to determine an interlocutory application that relates to the appeal.

(2)In all other cases, a party to an appeal may adduce further evidence only with the leave of the court.

(3)The court may grant leave only if there are special reasons for hearing the evidence. An example of a special reason is that the evidence relates to matters that have arisen after the date of the decision appealed against and that are or may be relevant to the determination of the appeal.

(4)Further evidence under this rule must be given by affidavit, unless the court otherwise directs.

[4]I turn to that application. Mr Huntly seeks to adduce the following:

(a)A copy of correspondence between Mr Huntly and a real estate agent in March 2017 in relation to an application to rent a residential property in Papatoetoe.

(b)An ANZ interim bank statement dated 20 December 2018 from Mr Huntly’s account in Fiji.

(c)Mr Huntly’s account statement with the Fiji National Provident…

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 Huntly v Hamilton

Details

AGLC: Huntly v Hamilton [2019] NZHC 1051
Case: [2019] NZHC 1051
Decision Date: 11 April 2019

CaseChat Overview and Summary

The case of Huntly v Hamilton involves an appeal by Mr Huntly against a Family Court decision to refuse him an order for the return of his children to Fiji. The appeal concerns the Family Court's findings on whether there was an agreed relocation to New Zealand in 2017 and whether Fiji was the habitual residence of the children before their retention in New Zealand. Mr Huntly applied for permission to adduce further evidence on appeal under rule 20.16 of the High Court Rules 2016, which governs the adducing of new evidence in appeals. The application was made for leave to adduce several pieces of evidence, including correspondence relating to a property rental, bank statements, and an agreement for the sale and purchase of a property in Fiji.

The court examined whether the proposed evidence was cogent, material, and fresh. It found that while the evidence related to a material issue, it was not cogent and lacked significance in the context of the case. The court also determined that the evidence was not fresh, as it was available at the time of the original hearing in the Family Court. The court concluded that there was no special reason to admit the evidence, as it would allow Mr Huntly to bolster his case on appeal after failing to meet the standard of proof required in the Family Court.

The application to adduce further evidence on appeal was therefore denied. No order was made as to costs.

Orders