K v H

[2012] NZHC 1178

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS

11B TO 11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION PLEASE SEE THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2012-412-141 [2012] NZHC 1178

BETWEEN  K Appellant

ANDH Respondent

Hearing:         29 May 2012

Counsel:         L A Anderson for appellant

R Cardoza for respondent

Judgment:      29 May 2012

ORAL JUDGMENT OF GENDALL J

[1]      The appellant is the mother of two boys now aged twelve and seven and a half years.  She has appealed against a decision of Judge Coyle in the Family Court at Dunedin delivered on 17 February 2012.  That decision made parenting orders in respect of the boys that they be in the primary day-to-day care of the respondent, their father, in the Balclutha/Waihola area.   The appellant/mother is to have the day-to-day care of the boys for one week during the school term holidays, 14 days in the  Christmas  holidays,  five  days  in  the  Otago  area  in  each  year  commencing

23 January, and on other weekends during term time, with defined phone contact and

such other day-to-day care or contact as agreed.

K v H HC DUN CIV-2012-412-141 [29 May 2012]

[2]      There are certain conditions to the parenting orders as to the boys’ residence remaining in the Balclutha/Waihola area, required non-contact with a named person and practical conditions relating to transfer of the children from time to time.

[3]      The essence of the mother’s appeal is that she wishes to secure the primary

day-to-day care of the boys in Nelson where she now works.

[4]      The  matter  comes  before  me  today  on  the  basis  that  I  should  make  a preliminary ruling whether Judge Coyle was correct in the manner in which he conducted the hearing, prior to making the parenting orders which are essentially in favour of the father.

[5]      I  have  signalled  to  counsel  my  reservations  about  me  undertaking  this exercise separate from determining the substantive appeal itself.   Of course, the parties sought an order and, by consent, French J, in a telephone conference on

22 March 2012, directed that this should occur.  Although it is not apparent from her Minute, she envisaged that this take place before Fogarty J and, by inference, the Judge who heard the substantive appeal. A review of the file indicates that Fogarty J was unavailable to deal with this preliminary matter.   What was unknown to the Registry as well as the parties when the matter was set down to be heard by me on my visit to Dunedin was that I am not going to be available at any time to preside over the substantive appeal.  That means that whatever I might rule or decide on the preliminary issue, the Judge who hears the appeal may not agree and cannot be bound by my views because his/her task is to determine whether Judge Coyle was right in the conclusions he reached, and in the manner in which he conducted the hearing.

[6]      A brief analysis of the background is necessary.

[7]      On 16 September 2010, Judge Coyle made a parenting order, essentially that the substantial day-to-day care of the boys be with their mother in the Balclutha/Waihola area.  Judge Coyle declined to allow the appellant to relocate the children to Nelson.   The hearing encompassed three days of evidence.   After the

judgment was delivered, the appellant immediately appealed on the basis that she in fact intended to move to live in Nelson as she had obtained employment there.

[8]      What followed has led to procedural complexities.  Counsel for both parties attended by telephone on Fogarty J at a case management conference on 9 November

2010.  His Honour noted that there was a change in the appellant’s circumstances in that she was going to work in Nelson, whereas Judge Coyle had required the boys to stay in the Balclutha/Waihola area.   His Honour said that counsel agreed that the decision under appeal was:

... no longer relevant to the changed circumstances.  With the consent of all counsel the appeal is allowed on the basis that it is no longer relevant and the matter is remitted back to the District Court for reconsideration in light of those changed circumstances.

[9]      It would have been open for Fogarty J to simply deal with the appeal on the basis  of  that  which  the  appellant  asserted,  namely  that  she  sought  approval  to relocate with the boys  to Nelson, it being a variation (albeit substantial) of the original  order.    But  Fogarty J  was  entitled,  however,  to  remit  the  matter  for reconsideration in the Family Court.

[10]     What then happened was that counsel for the appellant/mother submitted to the Family Court that Fogarty J’s “decision” was a decision that factual findings made at the first hearing had been set aside in their entirety and the rehearing in the Family Court was to be a hearing de novo.  Mr Anderson on behalf of the appellant had argued before Judge Coyle that he wished to adduce new evidence, not presented at the original hearing, on behalf of the appellant directed at allegations of behaviour on the part of the respondent.  Judge Coyle was reluctant to allow that, given there had already been three days of evidence, and sought clarification from Fogarty J as to his direction as to a rehearing.  His Honour said it would be the task of the Family Court Judge to:

... reconsider the whole case as part of reconsideration in light of the new changed circumstances, this being necessary because the new changed circumstances of themselves do not resolve the issues between the parties, but rather go into the mix of matters that have to be taken into account.  So I would envisage that the whole case would be reconsidered.

That, however, does not mean that the District Court has to rehear all the evidence afresh if the matter goes back, as it has done, to the original Judge, as there was no ready reason for rehearing the evidence leading to findings of fact, already made, and distinct from the recent change of circumstances. This is the reason I use the term reconsideration.

[11]     Whether  or  not  that  Minute  is  quite  clear,  Judge  Coyle  said  that  there appeared to be “an ambiguity” in what Fogarty J said.   It may be that the only sensible interpretation is that Fogarty J was, as is usually the case, observing that updating evidence might be adduced to deal with the present situation, the needs and welfare of the boys and whether that would be best served by them living with their mother in Nelson. The past evidence on factual matters, although forming part of the historical narrative and assessment, might not be the subject of further contested evidence.   Mr Anderson’s position was, and remains, that the effect of Fogarty J’s direction  was  there  would  be  a  hearing  de  novo  (although  Mr Anderson  has emphasised to me that he only wished to adduce further evidence on specific areas or allegations) with all prior findings having been overturned.

[12]     Judge Coyle did not agree with Mr Anderson and proceeded to rehear the matter on the basis that there had been a fundamental change of circumstances, and the rehearing occurred over four days in late January and early February 2012. Judge Coyle delivered a reserved judgment on 17 February 2012.  He concluded that Fogarty J’s intent was that the original factual findings (as opposed to the ultimate decision as to what was in the best interests of the boys) were not set aside and any rehearing of evidence was limited to the change of circumstances since 2010.  Part of the appeal argument, and which Mr Anderson wishes to advance, is that Judge Coyle was wrong in that decision, and it is this upon which I was asked to rule as a preliminary matter.

[13]     If I were to be the Judge who hears the appeal and decides it on its merits, I would not have seen any difficulty with that being adopted as an initial step. However, because of my unavailability, that will not be possible.  I do not regard it as open to the parties, or desirable, to have a preliminary issue challenging the manner in which a Family Court Judge determined a case to be ruled upon in abstract from the substance of this appeal.   The appeal essentially relates to the

day-to-day parenting of the boys, whether in Nelson or Otago, and any consequential contact by the boys with others.

[14]     What has always been the position with appeals relating to what were once custody/access cases, and are now parenting orders, is for the High Court to conduct a  rehearing.     That  is  usually  conducted  on  the  transcript  of  evidence  and cross-examination, together with social workers’ and psychologists’ reports and the like.  Fresh evidence may be adduced if the appellate judge considers it is necessary to bring the Court up to date with the current position regarding the children, their welfare, schooling and other matters relating to their best interests.  Sometimes the parents may be made available for cross-examination, if the parties or the Judge requests.

[15]     It is rare for the appeal to be enlarged to permit evidence, available but not given at an earlier stage, to be presented, although there will always be exceptional cases.  That is a matter for the appellate judge to determine when he/she comes to consider the issue, namely what is in the best interests and would best serve the welfare of the children.  The extent to which factual findings made in the lower court are challenged is a matter of judgement for the appellate court.  So, too, is the extent to which additional evidence may be permitted to be adduced in support of, or in answer to, the appeal.  The end task of the appellate court is to decide, based upon the evidence on the record, specialists’ reports, Family Court’s findings and reasons, and any permitted up-dating evidence, whether the ultimate decision is wrong based upon all the relevant circumstances existing at the time.

[16]     The appeal does not relate to the earlier decision of Judge Coyle and counsel do not assert that to be the case.  It relates to the decision of 17 February 2012, the essence  being  not  to  permit  the  mother  to  relocate  with  the  boys  to  Nelson. Judge Coyle determined that on evidence that he heard, including the transcript, and in fact said at [104] of his judgment:

In doing so I have considered afresh the evidence in particular my findings in the September judgment, and the new evidence following that judgment.

[17]     Whether Judge Coyle was correct in the orders he made, the reasons he gave for them, and the manner in which he reconsidered his original decision is a matter for this Court to determine on the substantive appeal.  Mr Anderson asserts the Judge was wrong because he should have permitted the appellant to adduce further or additional evidence as to the allegations that she made relating to the conduct of the respondent.

[18]     It would be wrong for me to rule on a preliminary basis that the manner in which Judge Coyle conducted the appeal was unobjectionable.   To do so, and therefore find against the appellant on this point, might invite a further application for leave to appeal by her (even though such a finding might well not constitute an appealable order).   Alternatively, to find in favour of the appellant might invite a similar application  on  behalf  of the respondent.   The  litigation  would  have the prospect of being never-ending – if that is not already apparent.

[19]     But the essential point is that the litigation has to be brought to an end without further procedural complexities.  The only way for that to happen is for the appeal  to  be  heard  on  the  merits,  which  would  include  any  challenge  that  the appellant now makes to the manner in which Judge Coyle conducted the four day “reconsideration” hearing and whether, in the end, the parenting orders he made should not, in light of today’s updated circumstances, have been made.   In a case such as this where a challenge is made to the manner in which the District Court Judge conducted the hearing, it is not permissible or proper for that part of an appeal to be determined by one Judge in isolation and separate from the determination as to the eventual outcome by a different Judge.

[20]     It is a matter for the Judge who hears the appeal to determine the ambit of any evidence that the parties might seek leave to adduce in support of, or in opposition to, the appeal.  If they wish, they may file applications for such leave, and affidavits as to the evidence that is sought to be adduced, and it will be entirely a matter for the appellate judge to decide what, if any, fresh evidence he/she regards as necessary, not only to bring the Court up to date but to enable it to decide the outcome of the appeal on a proper basis.

[21]     The appellant/mother is entitled to pursue her present appeal on the merits and part of the appeal argues that Judge Coyle was wrong because of the way in which he conducted the four day hearing and came to his decision.  But that must be all part and parcel of the substantive appeal and be one of the considerations that the appellate judge will consider in conjunction with all the other relevant circumstances involving both matters of law and of fact.

[22]     As I said, it is essential that the litigation come to an end in the interests of the children.   I direct that the Registrar allocate the earliest possible fixture after consultation with counsel, including counsel for the children and counsel assisting. Once that is done, a telephone conference is to be convened to outline timetable directions, if any be necessary, relating to the presentation of further evidence (assuming leave is sought and later granted).  To expedite progress, the parties may now file any applications for leave to adduce evidence and affidavits of the evidence that is sought to be presented and, within the anticipated timetable directions, a time allocated for the determination of such leave applications should be fixed.

J W Gendall J

Solicitors:

Katie Lane Law, Dunedin for appellant

Staley Cardoza, Dunedin for respondent