Miles v Hall - [2024] NZHC 392

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

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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…

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 Miles v Hall

Details

AGLC: Miles v Hall [2024] NZHC 392
Case: [2024] NZHC 392
Decision Date: 29 February 2024

CaseChat Overview and Summary

The case of Miles v Hall involves Blair Miles, the appellant, appealing against a Family Court decision made by Judge Grimes, which included a final protection order against him and a final parenting order granting Mary Hall, the respondent, day-to-day care of their five-year-old child, with Blair to have supervised contact at a supervised contact centre. Miles specifically appeals the requirement for his contact with the child to be supervised, not challenging the protection order or the parenting order regarding day-to-day care. The appeal hinges on the appellant's contention that the Judge did not consider his proposals for managing the risk of conflict during child exchanges and assumed he would expose the child to parental conflict during contact visits without direct evidence.

The court examined the legal principles governing the admission of further evidence on appeal, emphasizing the importance of the best interests of the child, the need for finality, and the high threshold for admitting new evidence. The court also considered whether the proposed new evidence was fresh, credible, and cogent, and whether it met the interests of justice. In this case, the court found that the appellant's application to adduce further evidence was not sufficiently fresh or cogent to justify leave for it to be adduced on appeal. The court concluded that admitting the proposed new evidence would likely turn the appeal into a new hearing rather than a re-hearing based on the existing evidence, which would not be in the best interests of the child. Consequently, the appellant's application for leave to adduce further evidence on appeal was declined, and the respondent was entitled to costs, which were to be determined based on submissions from both parties.

Orders