Miles v Hall
[2024] NZHC 392
•29 February 2024
NOTE: 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. FOR FURTHER INFORMATION, PLEASE SEE
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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2023-419-000145
[2024] NZHC 392
BETWEEN BLAIR MILES
Appellant
AND
MARY HALL
Respondent
Hearing: 16 October 2023 Appearances:
R Sutton on behalf of C Starr for the appellant G O’Brien for the respondent
J Niemand and S Murdoch-Priest for the child
Judgment:
29 February 2024
JUDGMENT OF ROBINSON J
[Application for leave to adduce further evidence on appeal]
This judgment was delivered by me on 29 February 2024 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules
…………………………………………………………………… Registrar/Deputy Registrar
Solicitors/counsel:
Evans Bailey, Hamilton
Garth O’Brien & Associates, Te Awamutu Niemand Peebles Hoult, Hamilton
MILES v HALL [2024] NZHC 392 [29 February 2024]
Introduction
[1] The appellant seeks leave to adduce further evidence on appeal. The appeal is against a Family Court Decision dated 3 May 2023 (decision)1 in which Judge Grimes made:
(a)a final protection order against the appellant; and
(b)a final parenting order providing for the respondent to have day-to-day care of the parties’ five-year-old child with the appellant to have supervised contact at a supervised contact centre.
[2] The appellant appeals that part of the parenting order requiring his contact with the child to be supervised. He does not appeal the protection order, or the parenting order that the respondent have day-to-day care of the child.
[3] In support of his appeal the appellant applies to adduce an additional affidavit from himself, and one from each of three friends, two of whom are his flatmates.
Background
[4] The parties separated in September 2018 when their daughter was four months old. She has been the subject of litigation in the Family Court since then involving numerous applications and four defended hearings. Judge Grimes noted that the longest period the child’s care arrangements have been away from the Family Court was four and a half months; and the shortest period is only 20 days.2
[5] Judge Grimes sets out the procedural and substantive background in some detail. An important focus of her decision was what occurred during “changeovers” when one of the parties delivered the child to the other. The Judge noted that since the Family Court had determined the parties’ parenting proceedings on 16 June 2020 there had been 12 family harm reports, 11 made by the respondent and one by the appellant.3 Most but not all of these alleged incidents had occurred at changeover. Five had been
1 Miles v Hall [2023] NZFC 4064. These are not the parties’ real names.
2 Decision, at [1].
3 Decision, at [43].
recorded by the respondent in a way provided for in the parenting order in place at that time.
[6] The Judge dealt with each of these incidents in some detail4 and set out parts of the transcript of some of the recordings. The Judge took this evidence into account in determining that it was necessary to make the protection order and the parenting orders, including that the appellant’s contact with the child must be supervised.
[7]Her Honour noted that:
[129] Having listened to the recordings of [the appellant’s] explosive temper, tone of voice and offensive language, I am not convinced this immediately stops once [the respondent] has left changeover. Not only am I concerned [the child] is exposed to this abusive behaviour in the first place but that it may continue for a time after changeover ends or when [the child] talks about her mother at contact in a way [the appellant] does not like. Further, I am not confident that as [the child] gets older, more independent and challenges her father, that the level of anger portrayed will not transfer to her.
[130] Protecting [the child] from exposure to [the appellant’s] violence and negative view of her mother must be my priority. The law requires me to make care arrangements that protects [the child’s] safety.
[131] Unfortunately, [the appellant] did not turn his mind to how this could be achieved.
[132] He came to Court with no plan on how to fix the problem. … He says he has no one he can regularly call on to undertake changeovers. He gave no explanation why, his mother who lives [in between the parties] and with whom he has previously lived, could not undertake the changeovers with [the respondent] or have been a neutral changeover point (noting [the appellant] lives [redacted] with flatmates). Rather, he relies on [the respondent] always having had support people available to assist with changeover.
[133] [The appellant] did not talk to his employer about adjusting his work hours so changeovers could be to and from school on Fridays and Mondays when [the child] turns five in May 2023. Further, he did not believe it was possible without taking a reduction in salary.
[134] I accept [the respondent] has all but exhausted her options for support people helping her. Unfortunately, even with support people present, it has not stopped [the appellant’s] abusive behaviour and thus I cannot rule out [the child] will not be exposed to this.
[135] Even if a practical solution to changeovers could be found, I am not satisfied [the child] would be safe from exposure to other forms of parental conflict. Given my findings of the seriousness of that conflict, I find supervised contact is necessary.
4 Decision, at [45] – [96].
…
[139] I appreciate the harshness of this decision. However, the problem was [the appellant’s] to fix. The outcome should not be a surprise to him. The warnings given to him by three different Judges have not been heard. [The child] cannot wait any longer for her father to change his abusive ways.
The evidence
[8] As noted, the appellant applies for leave to adduce four further affidavits on appeal. One from himself, and one from each of three friends to whom I shall refer as Mr A, Mr B and Ms C.5 I summarise the proposed new evidence below. In broad terms, it is intended to provide a solution to changeovers that would remove the need for the parties to have direct contact, and to respond to the Judge’s concern that the appellant’s “explosive temper, tone of voice and offensive language” may continue for a period after changeover, or when the child talks about the respondent.6
The appellant’s proposed evidence
[9] The appellant confirms he is not challenging the protection order or the order that the respondent have day-to-day care of their child. His appeal relates to the requirement that his contact be supervised. The appellant also confirms that his grounds for appeal are based on:
(a)there being no consideration of his proposals in his oral evidence to remove the risk of conflict at changeover; and
(b)the Judge making an assumption that the appellant would expose the child to parental conflict during a contact visit when there was no direct evidence on that point.
[10] The appellant acknowledges the changeovers have been problematic due to conflict between him and the respondent. He repeats suggestions he says he made in oral evidence to manage that. These include having one of his flatmates meet the respondent at the door; and for the appellant to meet with the respondent’s support
5 The appellant also applied for leave to adduce a fifth affidavit but abandoned this aspect of his application prior to the hearing.
6 Decision, at [129].
person when returning the child. The appellant says this would avoid the need for him to have direct contact with the respondent.
[11] The appellant also says that he has subsequently spoken with his employer and is able to adjust his hours to enable him to travel on Friday afternoons and Monday morning to affect the changeovers. He attaches a letter from his employer to this effect.
[12] The appellant’s affidavit also refutes evidence given by the respondent at the hearing. The proposed affidavit includes a brief submission concerning part of the respondent’s evidence, including that it was “all opinion based”.
Mr A’s affidavit
[13] Mr A has known the appellant for approximately three years and considers him to be a close friend. They have worked together, and became flatmates at some time in the first half of 2023. It is unclear whether that was before or after the hearing before Judge Grimes.
[14] Mr A says that he was “troubled and surprised” to hear that during the hearing in the Family Court the appellant’s “love and care for [his child] was put into question”. Mr A says that is why he is happy to provide a supporting affidavit. Mr A says the appellant “is the best parent that I have seen. I cannot think of a more loving, patient and kind parent than [the appellant]”. He says that he can say “with certainty that [the appellant] has never and would never direct any of his frustrations towards [his daughter]”. He says that when the child speaks about the respondent while with the appellant “[the appellant] has been very careful to maintain a positive atmosphere for [the child]”. Mr A says he has seen the child in the appellant’s care approximately 20-30 times and that on each occasion the appellant ensures she has all her needs met.
[15] Mr A confirms his offer to become a support person to the appellant during changeover or alternatively to be the person that receives the child into the appellant’s house.
Mr B’s affidavit
[16] Mr B has known the appellant for three years. He has previously worked with him, and they are currently flatmates.
[17] He says he is confident from his observations that the appellant is a caring and devoted parent. He confirms that when he has seen the child in the appellant’s care he has never heard the appellant say anything negative about the respondent as a parent. Mr B also offers to be available as a support person during changeovers and to receive the child instead of the appellant.
Ms C’s affidavit
[18] Ms C has known the appellant for about two and a half years. They had a strong professional relationship when they worked together and later developed a good friendship.
[19] Ms C has mentored the appellant at work and speaks well of his management and leadership skills. She says she has spent time with the appellant and his daughter at her home and observed the appellant to be a loving and devoted father. She gives examples of that. She explains ways in which the appellant has been a good friend to her. She comments on how she considers the appellant’s health to be affected by the stress of the “Family Court conflict”.
[20] Like Mr A and M B, Ms C confirms that she can be a support person during changeovers when the child is delivered to the appellant.
Legal principles
[21] The relevant legal principles are well known. Rule 20.16 of the High Court Rules 2016 regulates the admission of further evidence on appeal. Further evidence will only be allowed with the leave of the Court.7
[22]Importantly:
7 High Court Rules 2016, r 20.16(2).
(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.
[23] In B v A8, Wylie J set out the principles governing the receipt of further evidence as follows:
(a)The Court can receive further evidence if it thinks that the interests of justice require it to do so.
(b)It is wrong to allow an appellant to bolster his or her case with additional evidence that was available at the lower Court hearing, but not adduced because of the particular view of the case being taken at the time.
(c)Admitting further evidence on appeal is exceptional rather than routine. A change of heart about how a case should have been run will not suffice. The prospect of further evidence triggering a substantial re-litigation before the appellate Court of the substantive case will count against admitting the further evidence.
(d)Generally, the further evidence must be fresh, credible and cogent.
(e)Evidence will not be regarded as fresh if it could, with reasonable diligence, have been produced at the trial.
(f)The absence of freshness is not an absolute disqualification. When the further evidence is not fresh, it will not generally be admitted unless the circumstances are exceptional and the grounds compelling. In addition, the further evidence needs to pass the tests of credibility and cogency.
(g)The interests of justice require the parties to put their best case forward at trial, in order to avoid wasting the Court’s limited time and resources. A high value is placed on finality when the parties have been afforded the opportunity and failed to take it.
(h)The standard to be met is “rightly high”.
[24] There is an additional factor that must be considered here. With respect to decisions concerning the Care of Children Act 2004 the best interests of the child are always the paramount consideration. That will also affect how the Court deals with an application to admit further evidence on appeal.9
8 [2020] NZHC 580 at [25]; (2020) 26 PRNZ 58.
9 WH v Chief Executive Ministry of Social Development (2008) NZFLR 1069 at [31] – [35]; KP v AZ [2020] NZHC 1340 at [16] – [23]; and Hanning v Crosby [2021] NZHC 389; and Rosen v Guy [2022] NZHC 1973 at [6].
[25] In WH v Chief Executive Ministry of Social Development10 Potter J considered that the appropriate approach is first to consider whether the evidence would qualify for admission pursuant to r 20.16.11 If so, the Court need not go any further. If not, the Court should consider whether the welfare and best interests of the children require a broader approach to be taken.
Submissions
[26] Counsel for the appellant submits that Mr A’s evidence is fresh, credible and cogent. Alternatively, if the evidence is not fresh, there are exceptional and compelling grounds for it to be adduced. Standing back, counsel submits that it is in the interests of justice for the evidence to be adduced, with the best interests of the child as an overriding consideration.
[27] Counsel submits that Mr A’s evidence is relevant and supports the appellant’s case on appeal that the child is not at risk of family harm in his care, and that there are options for changeover that will avoid the risk of exposing the child to further family harm. Counsel makes the same submission in relation to Mr B.
[28] As for Ms C’s evidence, counsel submits that while it may not be fresh, it is cogent and credible evidence of Ms C’s direct observations of the child with the appellant. Counsel emphasises that Ms C’s evidence is relevant to the issues on appeal.
[29] Counsel submits that if there has been delay in adducing the evidence such that it is not “fresh”, the disadvantages of the delay are offset by the advantages of having the best information available before this Court on appeal. Counsel accepts that if admitted the respondent would require time to respond to the evidence. She submits it is in the best interests and welfare of the child for this evidence to be available so that the Court can properly assess the opportunity for changeovers to proceed without the risk of further harm.
10 WH v Chief Executive Ministry of Social Development, above n 9.
11 Previously r 20.16, sch 2, Judicature Act 1908.
[30] Counsel for the respondent submits that the application should be dismissed. He submits the appellant was fully aware that issues concerning changeover would arise in the Family Court and could have adduced the evidence of Mr A, Mr B and Ms C at trial. Instead, the appellant tactically chose not to call that evidence, arguing instead that no supervision was required at changeover or otherwise. Counsel also challenges the cogency of the evidence pointing out there is no evidence to suggest that Mr A, Mr B or Ms C were present immediately after changeover and they will not be with the appellant all the time. Counsel criticises the proposed evidence as being too vague and general to be admitted at this late stage.
[31] Counsel also confirmed that if leave was granted for the appellant to adduce this further evidence the respondent would wish to cross-examine the witnesses and to file evidence in response.
[32] Mr Niemand for the child submits that the appellant should be granted leave to adduce some but not all of the proposed evidence. In particular, he submits that it would be in the best interests of the child for the appellant to have leave to adduce evidence from Mr A, Mr B and Ms C that they are available to assist with changeover. Also, Mr A’s evidence that the appellant is a good parent and has spoken positively whenever the child has spoken about the respondent. Mr Niemand also submits that leave should be given to the appellant to provide further evidence concerning:
(a)his oral evidence in the Family Court; and
(b)his having obtained confirmation from his employer that he can vary his work hours to enable him to effect pick up and drop off on Friday afternoon and Monday morning.
Assessment
[33] I will consider first whether on a traditional application of r 20.16 leave should be granted to adduce the proposed new evidence on an appeal. If not, I will consider whether the welfare and best interests of the child require leave to be granted in any event.
[34] I agree with Mr Niemand that the appellant’s application is strongest in relation to the evidence from Mr A, Mr B and Ms C that they are able to assist and support him during changeover.
[35] It is clear from the judgment that the parental conflict and in particular the appellant’s behaviour during changeover were significant factors in the Judge’s decision.
[36] However, it is also relevant that on appeal the appellant says the Judge gave no consideration to the proposals in his oral evidence to remove the risk of conflict at changeovers. In particular, he says that in oral evidence he suggested that he would have one of his flatmates come to the door to meet the respondent during changeover, thereby removing the need for direct contact between the parties.
[37] It is unclear from their proposed evidence whether Mr A and Mr B became flatmates with the appellant before or after the Family Court trial. However, the appellant’s complaint that Judge Grimes overlooked his proposal at trial demonstrates that his flatmates could have given that evidence themselves. So neither Mr A’s nor Mr B’s evidence is “fresh”.
[38] Neither do I consider their evidence to be particularly cogent. If, as he asserts, the appellant gave evidence at trial that his flatmates could assist at changeover then the proposed evidence from the flatmates themselves that they are able to help at that time is little more than a retrospective attempt to bolster what the appellant says was his evidence at trial. Moreover, and perhaps more substantively, the evidence of Mr A and Mr B in that regard only goes so far. They say they are prepared to support the appellant at changeovers. There is no evidence as to the state of their relationship with the child; the length of time for which they might commit to assisting the appellant in this way; or any other factors the Court would need to consider before concluding it was in the best interests and welfare of the child to make parenting orders conditional on the assistance of the appellant’s flatmates during changeovers. Understandably counsel for the respondent would wish to cross-examine Mr A, Mr B and Ms C, about matters such as these.
[39] For these reasons I am not satisfied that the proposed evidence from Mr A, Mr B and Ms C that they are able to support the appellant during changeovers is sufficiently fresh or cogent to meet the high standard justifying leave for it to be adduced on appeal.
[40] Nor do I consider that the remainder of their evidence (or that of the appellant) is sufficiently fresh or cogent for leave to be granted. Mr A, Mr B and Ms C would all say that the appellant is a good and loving father, and that they have not seen him speak badly of the respondent in front of the child. However, there is no dispute that the appellant is a loving father. Judge Grimes noted as much in her judgment.12 There is no need for further evidence to that effect.
[41] Counsel for the appellant submitted the proposed new evidence as to how the appellant speaks of the respondent in front of the child tends to counter the Judges stated concern that the appellant’s “explosive temper, tone of voice and offensive language… may continue for a time after changeover ends or when [the child] talks about her mother at contact in a way [the appellant] does not like”.13
[42] Whilst relevant, I do not consider Mr A, Mr B or Ms C’s proposed evidence on this point to be sufficiently cogent to justify leave being granted to adduce it on appeal. Each of those witnesses refer to one or two specific occasions when they saw the appellant speak appropriately of the respondent in front of the child. On the other hand, the Judge expressed her concerns in a judgment following a two-day trial involving over 1,000 pages of evidence and other material covering events that have occurred over a number of years. For example, the 12 changeover incidents Judge Grimes describes in the judgment occurred between 31 October 2020 (when the child was two) and 8 July 2022 (when the child was four).
[43] As I have noted, the welfare and best interests of the child must be an overriding consideration. However, I do not consider these require me to grant leave for the appellant to adduce the proposed new evidence.
12 Decision, at [125].
13 Decision, at [129].
[44] The child has been involved in various Family Court proceedings almost all her life. The Family Court is a specialist jurisdiction with particular procedures tailored to enable it to assess the best interests of the child. The appellant has a full right of appeal.14 This will proceed by way of a rehearing, following which this Court will make its own assessment of the matters before the Family Court. However, if the appellant has leave to adduce new evidence, it would likely become the focus of the appeal. The appeal would become a new hearing of new evidence, rather than a re- hearing based on the extensive evidence already before the Court. I do not consider that would be in the best interests of child.
[45] In terms of the perceived harshness of Judge Grimes’ decision, the appellant submits on appeal that the Judge overlooked the oral evidence of his proposals during changeover. The Court will not require new evidence to address that submission.
Result
[46] The appellant’s application for leave to adduce further evidence on appeal is declined.
Costs
[47] The respondent is entitled to costs. My preliminary view is that these should be fixed on a 2B basis.
[48]I direct as follows:
(a)the respondent should file a memorandum in support of any claim she makes as to costs and disbursements within 10 working days;
(b)the appellant should file a memorandum in response within a further 10 working days; and
(c)memoranda should not exceed three pages in length.
14 The parties may also apply to the Family Court to vary the parenting order, although the leave of the Family Court will be required if that application is made within two years. Care of Children Act 2004, ss 56(1)(a) and 139A(1)(b).
[49] I will then deal with the issue of costs and disbursements on the papers unless I require further assistance.
Robinson J
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