Irving v Irving - [2021] NZHC 2269

PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018 AND 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. THIS JUDGMENT HAS BEEN ANONYMISED, HOWEVER, AND MAY BE REPORTED IN THIS FORM.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000592

[2021] NZHC 2269

BETWEEN
JOAN IRVING

Applicant

AND

SIMON IRVING

Respondent

Hearing: 10 June 2021

Counsel:

J Gandy for applicant

V A Crawshaw QC, counsel to assist the Court

Judgment:

31 August 2021

JUDGMENT OF KATZ J

This judgment was delivered by me on 31 August 2021 at 4:00 pm pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Thomas & Co, Auckland
Counsel: V A Crawshaw QC, Hobson Chambers, Auckland

IRVING v IRVING [2021] NZHC 2269 [31 August 2021]

Introduction

[1] Ms Irving1 sought and obtained a temporary protection order against her husband, Mr Irving, as well as an interim parenting order which provided for supervised contact between the parties’ four children and Mr Irving.

[2] The temporary protection order has since been discharged and the proceedings under the Family Violence Act 2018 concluded. The proceedings under the Care of Children Act 2004 remain afoot, however, and include allegations of family violence.2 Mr Irving wishes to have unsupervised care of his children and ultimately seeks to share their care with Ms Irving.

[3] A party to criminal or civil proceedings involving allegations of family violence is not entitled to personally cross-examine a complainant or party who has made allegations of violence.3 Rather, s 95(5) of the Evidence Act 2006 provides that the party precluded from cross-examining, if they are unrepresented, “may have his or her questions put to the witness” by a person appointed by the Judge for that purpose.

[4] Ms Irving is legally represented. Mr Irving is not. Section 95 of the Evidence Act is therefore engaged, and Mr Irving is not able to personally cross-examine Ms Irving.4

[5] There are disparate views held by Family Court Judges and family law practitioners about who can be appointed by a Judge to perform the s 95(5) role, and what the scope of the role is. The issue has significant practical implications, due to the number of unrepresented parties in the Family Court. The Family Court

1      Pseudonyms have been used to protect the identity of the parties.
2      [Irving] v [Irving] [2021] NZFC 2735 at [1]-[14].
3      Evidence Act 2006, s 95(1). For convenience I will refer to an unrepresented party who is precluded from personally cross-examining a witness as “the unrepresented party,” although in practice other parties may also be unrepresented.
4      Family Court Act 1980, s 12A provides that the Evidence Act applies to proceedings in the Family Court.

(Judge Emma Parsons) has therefore, of its own motion, stated a case for the opinion of the High Court.5 There are three questions for determination:

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 Irving v Irving

Details

AGLC: Irving v Irving [2021] NZHC 2269
Case: [2021] NZHC 2269
Decision Date: 31 August 2021

CaseChat Overview and Summary

The Irving v Irving case concerns the interpretation of the role of a Lawyer to Assist appointed under s 95(5) of the Evidence Act 2006, in the context of proceedings under the Family Violence Act 2018 and the Care of Children Act 2004. Ms Irving has sought and obtained a temporary protection order against her husband, Mr Irving, as well as an interim parenting order which provided for supervised contact between the parties’ four children and Mr Irving. The temporary protection order has since been discharged and the proceedings under the Family Violence Act 2018 concluded. The proceedings under the Care of Children Act 2004 remain afoot, however, and include allegations of family violence. Mr Irving wishes to have unsupervised care of his children and ultimately seeks to share their care with Ms Irving. The issues before the Court were whether there is jurisdiction in the Family Court to appoint a Lawyer to Assist to fulfil the s 95(5) role, and if so, what is the scope of the s 95(5) role. The Court found that there is jurisdiction in the Family Court to appoint Lawyer to Assist to fulfil the s 95(5) role, noting the role prescribed within s 9C of the Family Court Act 1980. The role of a person appointed pursuant to s 95(5) is limited to putting the unrepresented party’s questions (repeating the questions of the unrepresented party as prepared by the unrepresented party). The person appointed to the s 95(5) role is not required to conduct their own cross-examination of the vulnerable witness, including complying with the cross-examination duties in s 92 of the Evidence Act. It is the unrepresented party, not the person appointed under s 95 (usually Lawyer to Assist) who is subject to the s 92 cross-examination duties. If the unrepresented party fails to discharge their cross-examination duties, the Judge may take steps to intervene under s 92(2). Further, the Judge has the responsibility of explaining the trial process to the unrepresented party, outlining the relevant rules of evidence, and intervening as necessary to ensure overall fairness to each side, including giving guidance in putting questions to witnesses. In addition, the Judge has an enhanced supervisory role in relation to the questions asked, pursuant to s 95(6).

Orders