Norman v Attorney-General - [2020] NZHC 1483

NOTE: PURSUANT TO S 22A OF THE ADOPTION ACT 1955, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-000579

[2020] NZHC 1483

BETWEEN
NORMAN

Appellant

AND

ATTORNEY-GENERAL

Respondent

Hearing: 4 June 2020

Appearances:

B Keith and R Fletcher for the Appellant

K Wevers and L MacKay for the Respondent

Judgment:

29 June 2020

JUDGMENT OF DOOGUE J

Introduction

[1] On 28 February 2020,1 this Court gave judgment on an appeal from a judgement of Judge P Grace in the Family Court at Wellington,2 dismissing the appeal. The intended appellant, Ms Norman, has applied for leave to appeal this decision to the Court of Appeal.

1 Norman v Attorney-General [2020] NZHC 336.
2 [2019] NZFC 7023.

NORMAN v ATTORNEY-GENERAL [2020] NZHC 1483 [29 June 2020]

[2] Section 60 of the Senior Courts Act provides that the decision of the High Court on appeal from the Family Court is final, unless a party obtains leave to appeal against the High Court decision.

[3] Ms Norman also sought an extension of time for filing the application for leave to appeal, from 30 March 2020 to 11 May 2020. The delay in filing was occasioned by the impact of the COVID-19 pandemic. No opposition was mounted to the application for an extension, and I granted it at the outset of the hearing.3

Approach on appeal

[4] The principles applying to applications for leave to appeal were set out in the Court of Appeal decision of Waller v Hider.4 They are:

(a)the case must show some features that justify a second appeal, such as raising some question of law or fact which is capable of bona fide and serious argument;

(b)there must be some interest, public or private, of sufficient importance to outweigh the costs of the appeal; and

(c)the function of the second appeal Court is not general correction of error, but is to clarify the law.

[5]The Court of Appeal has subsequently affirmed these principles.5

[6] Not every alleged error of law will be of such importance to justify further litigation of a matter which has already twice been considered by a Court.6

[7] In Williams v Scott, Faire J stated that the High Court needs to identify the questions on which it grants leave, noting that the Court of Appeal disapproves of

3      High Court Rules 2016, r 1.19.
4      Waller v Hilder [1998] 1 NZLR 412 (CA).
5      Snee v Snee (1999) 13 PRNZ 609, [2000] NZFLR 120 (CA); JEF v TLR [2012] NZCA 612,
(2012) 29 FRNZ 150; and S v W [2014] NZCA 199.
6      Waller v Hilder, above n 4, at 413.

attempts, by way of second appeal, “to air, for the third time, every issue between the parties, no matter how trivial.”7

Issues raised by appeal

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 Norman v Attorney-General

Details

AGLC: Norman v Attorney-General [2020] NZHC 1483
Case: [2020] NZHC 1483
Decision Date: 29 June 2020

CaseChat Overview and Summary

In this case, Ms. Norman sought leave to appeal the High Court's dismissal of her appeal against the Family Court's decision, which declined to grant her an adoption order for two children from Ethiopia. The primary legal issues were whether the High Court correctly assessed the children's best interests and the applicability of New Zealand's international obligations under the United Nations Convention on the Rights of the Child (CRC). The court examined whether the High Court erred in its interpretation of the best interests of the children, particularly in relation to the relevance of immigration status, the purpose of adoption as creating a new family, and socioeconomic advantages. The court also scrutinized the High Court's assessment of whether the children could be suitably cared for in Ethiopia.

The court found that while some arguments presented potential questions of law, they did not sufficiently establish errors that warranted a second appeal. The court noted that the High Court adequately considered the children's best interests, including the potential educational and socioeconomic benefits of the adoption, and did not misconstrue New Zealand's international obligations under the CRC. However, the court did find merit in the argument that the High Court might have overly emphasized the creation of a new family as a prerequisite for adoption in the context of an intrafamily intercountry adoption. The court concluded that this issue warranted further examination and granted leave to appeal on this specific ground.

Orders