Huntly v Hamilton
[2019] NZHC 1051
•11 April 2019
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 Fund dated 10 December 2018.
(d)A copy of an agreement for sale and purchase of a property in Fiji dated 17 January 2017.
(e)A copy of an email from Air New Zealand dated 29 November 2016.
[5] Leave of the Court is required before that further evidence can be adduced on appeal.3 Leave may be granted only if there are special reasons for hearing the evidence.4 The ‘standard’ test for admission of new evidence was summarised in Culverden Retirement Village Ltd v McLuckie as follows:5
The discretion is 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.
[6] The overarching consideration is that justice is done in each case. Duffy J in referring to the precursor to r 20.6 described the approach as follows:6
[21] There is always room for the special case where fresh evidence is admitted, even though it was reasonably available for the hearing at first instance. The discretionary power in r 716 is broad enough to permit a Court to allow such evidence to be adduced. Furthermore, discretionary authority should never be fettered by fixed guidelines. But such exceptions would be rare and to occur, the fresh evidence would need to be cogent and material to the appeal’s resolution … When the fresh evidence is neither relevant nor likely to be material and, as well as that, is not new (in the sense it was reasonably available at the first hearing) there is no apparent basis for departing from the standard tests for its admission.
[22] It has always been said that the discretion to admit fresh evidence should be sparingly used and not to provide litigants with an opportunity to bolster their case on appeal.
[7] In determining whether leave should be granted, the Court may also have regard to the following factors:7
(a)Whether the evidence could have been obtained with reasonable diligence at the time of the original trial.
3 High Court Rules 2016, r 20.16(2).
4 Rule 20.1(3).
5 Culverden Retirement Village Limited v McLuckie HC Auckland CIV 2007-404-000750, 18 September 2007 at [16].
6 Complaints Committee No 1 of the Auckland District Law Society v P (2007) 18 PRNZ 760 (HC).
7 V P v R H [2015] NZHC 260 citing H v H HC Auckland CIV-2006-404-005799, 2 March 2007 at [18]; Cornwall Park Trust Board (Inc) v Chen HC Auckland HC55/98, 11 June 1998 at 4; Belling v Belling (1995) 8 PRNZ 523 at 525; Cromwell Corporation Ltd v Sofrana Immobilier NZ Ltd (1991) 5 PRNZ 180 at 182 (CA); and Sulco Ltd v E S Redit and Co Ltd [1959] NZLR 45 at 72 (CA).
(b)Whether the evidence is cogent or credible.
(c)Whether the evidence would have an important influence on the outcome of the case.
(d)Whether admitting the evidence will require other evidence from parties and cross-examination.
[8]I now turn to the issues on appeal.
Is the evidence cogent and material?
[9] In the Family Court the Judge found that the children did not have habitual residence in Fiji before moving to New Zealand. The issue of “habitual residence” was a key issue in the determination of the Family Court. I also note that Hague Convention cases such as this need to be dealt with by the Family Court with some speed.
[10] The pieces of evidence that Mr Huntly wishes to adduce relate to the question of habitual residence. It is at the heart of Mr Huntly’s appeal to this Court. Specifically, the extra information is said to show that assets were left behind in Fiji which, Mr Huntly says, directly challenges Ms Hamilton’s claim that Mr Huntly decided to move to New Zealand in 2017.
[11] I do not consider that the evidence reaches the standard of being material to the case before the Court. To decide whether something is material I must be clear about what the evidence is intended to establish. I have considered each piece of evidence in turn:
(a)Mr Rao for the appellant says the tenancy application shows that the premises to be rented for six months were for business. He says this demonstrates that Mr Huntly brought the family to New Zealand for business purposes only. The correspondence and information concerning the tenancy application states that the property was to be rented for six months. However, the family lived in another rental
property in Dannemora for seven months. The tenancy agreement for the Dannemora property was signed for a 12 month period.
(b)The ANZ bank account statements and National Provident Fund (pension) statements in my view do not add anything cogent to the case on appeal. As pointed out by Ms Hamilton, it is not extraordinary to have a bank account in another country when you have relocated from that country and you are carrying on a business across two countries. Nor is it extraordinary to have a pension fund in your country of origin into which contributions continue after leaving New Zealand while a business is kept alive in that country. I do not consider this evidence adds much to the evidence which was before the Family Court.
(c)Similarly, the agreement for sale and purchase of a property in Fiji does not add a crucial piece of evidence. Mr Huntly says the building was for use in their business. Ms Hamilton says their business involved purchasing vehicles and machinery. It was run between New Zealand and Fiji. In that context it was not unusual to purchase a property (in one country, Fiji). She says this is further supported by the fact the building was a commercial one.
(d)The email from Air New Zealand is also of little help in this case. The date of the purchase of the tickets being earlier than originally discussed does not help establish habitual residence in Fiji. Mr Huntly says this indicates the decision was not a snap one by him in 2017, but this was never an assertion made by the Judge in the decision in the Family Court.
[12] The bank accounts, the agreement for sale and purchase of the Fiji property and the pension evidence were all intended to show assets and opportunities remained in Fiji. While this may have added some support to Mr Huntly’s case it was equivocal, and I do not consider it was significant.
[13] If this evidence had been adduced in the Family Court it may have been tested. The evidence in the Family Court did not involve cross-examination, but nevertheless, the evidence would have been the subject of appropriate submissions and may have been subject of an application to cross-examine. In any event it would have been properly considered and tested before the Family Court.
[14] I conclude that the evidence that Mr Huntly now seeks to adduce, while might have been relevant to a material issue before the Court, is not of great significance and is not cogent in the context of this case.
[15]The application fails on this first limb.
Is the evidence fresh?
[16]I now turn to the second limb – whether the evidence is fresh.
[17] All the evidence now sought to be adduced on appeal was available at the time of the hearing in the District Court on 3 December 2018:
(a)The Papatoetoe property correspondence occurred in March 2017.
(b)The ANZ bank account and National Provident Fund (pension) statements of 10 and 20 December 2018 are dated after the time of the hearing. However, the actual transactions of interest occurred before the time of the hearing and therefore, would have been available at the time of the hearing.
(c)The agreement for sale and purchase of the Fijian property is dated 17 January 2017 and would have been available at the time of the hearing.
(d)The email from Air New Zealand is dated 29 November 2016.
[18] Therefore, in my view, none of the evidence sought to be adduced on appeal in the circumstances is fresh or new.
[19] Mr Rao says just because the material was available at the time of the hearing does not mean that it was stale for the purposes of this test. He said at the hearing it could not have been known, even with reasonable diligence, that the evidence would be relevant at the hearing. I do not consider that submission is supported by the evidence that I have before me nor the material that was before the Family Court.
[20] Mr Rao’s argument is that the matter of habitual residence was not squarely before the Court. He points to the fact that the issue was not specified as a ground of defence in Ms Hamilton’s notice of defence in the Family Court. However, as Mr Rao properly conceded, it was Mr Huntly who bore the onus for establishing that Fiji was the habitual residence of the children as a first step in his application.8 It was his responsibility to meet that onus. But he failed to do so.
[21] I note in passing that Ms Hamilton argued that Mr Huntly should have known what he had to prove in the Family Court including the establishment of habitual residence as Mr Huntly had been a party to a Hague Convention case before. But I do not consider that Mr Huntly’s previous involvement in a similar case would necessarily arm him with the legal knowledge of what he had to prove.
[22] However, I do think it is significant that Mr Huntly was represented in the Family Court by Mr Rao. Mr Rao noted that the application was heard close to Christmas which was one of the factors that went to his decision not to adjourn the application to enable the adducing of further evidence. In my view if the evidence now sought to be adduced was available and relevant to the hearing in the Family Court, it should have been adduced there. It would have been up to the Family Court to consider it at the time.
[23] It appears that the issue of habitual residence was squarely put in the issue in the affidavit of Ms Hamilton dated 8 November filed in the Family Court. Mr Huntly replied to the issue of whether or not there had been a decision to move to New Zealand and whether the children were resident in New Zealand, in his affidavit of 27 November 2018. This was well before the hearing on 3 December 2018.
8 Care of Children Act 2004, s 105; and Green v White [2018] NZHC 3249 at [59].
[24] Therefore, in my view, it is not now appropriate for Mr Huntly to attempt to bolster his case on appeal having failed to meet the standard of proof required to succeed in the Family Court.
Conclusion
[25] I conclude that although the evidence does pertain to a material issue before the Court it is not cogent nor is it fresh. It therefore fails under both heads. There is no special reason that it should be admitted. It would be inappropriate for Mr Huntly to be able to effectively bolster his case on appeal when all of this evidence was available to him at the time of the original hearing.
[26]The application to adduce further evidence on appeal fails.
Costs
[27] Counsel for the respondent indicates that no order for costs will be sought. As the respondent was the successful party in the usual course costs would have followed the event.
[28]Accordingly, no order is made as to costs.
Grice J
Solicitors:
Inder Lynch Solicitors, Manukau Woodward Chrisp Lawyers, Gisborne
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