NAS v LMB

[2014] NZHC 2345

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-001907 [2014] NZHC 2345

BETWEEN

NAS

Appellant

AND

LMB Respondent

Hearing:	25 September 2014
Counsel:	A Cooke for Appellant A Dullabh and S Bennett for Respondent A Finnie for the children
Judgment:	25 September 2014

ORAL JUDGMENT OF FOGARTY J

Solicitors:           Manukau Law, Auckland

Inder Lynch, Auckland

NAS v LMB [2014] NZHC 2345 [25 September 2014]

[1]      Judge SJ Maude, in the Family Court at Papakura, on 3 June, delivered a reserved decision on day to day care and contact in respect of two children, being the children of the parties. The decision followed a two-day hearing on 19 and 20 May.

[2]      In the course of the hearing, the Judge considered a report prepared by a

Ms Putland, as author of a s 132 Care of Children Act report, which was dated

31 July 2013.  Ms Putland was not available to produce that report and speak to it. In her absence, Ms Ashby, a supervisor, presented the report.  Naturally, Ms Ashby, who had not interviewed the children and the parents and been associated of the preparation of the report, was of little assistance to the Court in amplifying the report.

[3]      The  hearing  proceeded  in  the  absence  of  Ms  Putland,  obviously upon  a decision by the father and his counsel, Ms Norton.   The report was generally favourable to the father.  He was pushing for more time with the children vis-à-vis than the mother would have.   In the end, in a closely reasoned judgment, Judge Maude provided for shared access of the parents to the children.   That decision is under appeal by the father.

[4]      This morning I am considering a preliminary issue which is an application for leave to adduce further evidence, particularly to call Ms Putland.   Appeals to the High Court in cases such as this are on the record.   They are a rehearing on the record.  Further evidence is admitted most reluctantly by the Court.  This is a policy of longstanding by the High Court, currently reflected in r 20.16 of the High Court Rules.

[5]      The reasons for the reluctance of the Court is that the adducing of further evidence on appeal tends to have the effect that the Court on appeal is no longer considering the merit of the judgment under appeal at first instance, where the Judge has had full advantage of all the witnesses, but is now considering the record and the Judge’s reasons, coupled with evidence that the first instance Judge did not hear. This poses considerable difficulties on the Court, because the Court on appeal has some evidence by usually one witness but does not have the advantage that the first

instance  Judge  had  of  hearing  directly  from  the  other  witnesses.    Hence  the reluctance of the Courts on appeal to hear further evidence and hence the restrictions.

[6]      The rule allows any special reasons but normally granting further evidence is limited to evidence that simply was not available at the time of the first hearing.  In a sense,  it  can  be  said  that  this  application  falls  within  that  category  because Ms Putland was not available at the hearing.  But her report was, and was admitted and considered by the Judge.  The argument is that she could have been questioned by counsel for the father and further amplified her report.  The amplification of her report was unlikely to contradict her report.  It would perhaps therefore fall into the category of reinforcing her views.

[7]      Mr Cooke, who was not counsel before Judge Maude, and  that counsel, Ms Norton, is not available today, was not able to cite any decided case which is comparable to the issue being placed before me.  Were it a case where, because of Ms Putland’s absence, the s 132 report was not considered by the Court because, for example, Ms Putland would not be available to be cross-examined on it, this would be quite a different case.   But it is not like that at all.   I am also significantly influenced by the fact that this was a two-day hearing.   There was a considerable amount of other evidence before the Judge.  The Judge has written a very detailed decision.

[8]      For  these  reasons,  I  am  quite  firmly  of  the  view  that  the  absence  of Ms Putland on the day of the hearing is not a special reason for departing from the usual rule and confining the appeal to a rehearing of the case on the record.  I am comforted in that view that had it been considered that it was vital to the cause for Ms Putland to be available for cross-examination that Ms Norton’s judgment would have been to apply for an adjournment and wait three or four months out is the estimate of time for a further fixture.

[9]      For these reasons, this application to adduce further evidence is dismissed. [10]       There are no issues as to cost.