Rosen v Guy - [2022] NZHC 1973

NOTE: PURSUANT TO 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.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2022-485-48

[2022] NZHC 1973

UNDER the Care of Children Act 2004

IN THE MATTER

of an appeal against a decision of the Family Court at Wellington

BETWEEN

ROSEN

Appellant

AND

GUY

Respondent

Hearing: 9 August 2022

Appearances:

M A Twentyman for the Appellant T M M Jackson for the Respondent M Chisnall counsel for the child

Judgment:

10 August 2022

JUDGMENT OF COOKE J

(Declining leave to adduce new evidence on appeal)

[1] By application dated 3 June 2022 the appellant seeks leave to adduce further evidence on this appeal under r 20.16 of the High Court Rules 2016.

[2] The substantive appeal challenges a decision of the Family Court dated 10 January 2022 declining the appellant’s application for parenting orders in relation to one of her two children, both of whom were then in her care by agreement.1 The

1 Rosen v Guy [2021] NZFC 12271. These are not the parties true names.

ROSEN v GUY [2022] NZHC 1973 [10 August 2022]

two children have separate fathers. The appellant wanted to relocate from Wellington to Auckland with the children as a consequence of forming a new relationship. The father of the first child, who is 10 years old, agreed to that relocation. The respondent is the father of the second child, Oscar who is four years old.2 He did not agree to the relocation as it would mean that Oscar would move away from where he lives. The Family Court gave permission for the relocation of the first child in accordance with the agreement between the parents, but declined the appellant’s application in relation to Oscar and made orders that he be in the principal care of the respondent rather than the appellant given the appellant’s move. This decision and the associated orders are challenged on appeal.

[3] The appellant wishes to rely on her affidavit sworn 3 June 2022 primarily related to matters that have developed in the five months following the decision of the Family Court. It concerns the impact of the separation of the two children, the relationship between Oscar and his new step-siblings and the appellant’s new partner in Auckland, the communications between the appellant and respondent since the decision, the respondent’s availability to care for Oscar, and the impact of the decision on Oscar.

New evidence on appeal

[4] The admission of further evidence on appeal is regulated by r 20.16 of the High Court Rules 2016. This contemplates that further evidence will only be allowed with the leave of the Court, and in particular:

(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…

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 Rosen v Guy

Details

AGLC: Rosen v Guy [2022] NZHC 1973
Case: [2022] NZHC 1973
Decision Date: 10 August 2022

CaseChat Overview and Summary

Rosen v Guy was a case before the High Court of New Zealand, Wellington Registry, involving a dispute over a decision made by the Family Court regarding parenting orders in relation to a child named Oscar. The appellant, Rosen, sought to relocate from Wellington to Auckland with her two children, both of whom were in her care. The father of the first child agreed to the relocation, but the father of Oscar, the second child, did not agree as it would mean that Oscar would move away from where he lived. The Family Court gave permission for the relocation of the first child in accordance with the agreement between the parents, but declined the appellant's application in relation to Oscar and made orders that he be in the principal care of the respondent rather than the appellant given the appellant’s move. The appellant appealed the Family Court's decision and sought leave to adduce new evidence on appeal.
The legal issue the court had to decide was whether the appellant should be allowed to adduce new evidence on appeal. The court held that the appellant was not entitled to rely on the new evidence, as it was not fresh, credible, and cogent. The court held that the appellant's application effectively contemplated a new assessment based on what had transpired since the hearing in the Family Court last December, which was not consistent with the right of appeal in the court's view. The court held that the appellant's rights on appeal did not extend to having a new hearing focused on the situation a number of months after the Family Court decision.

In summary, the High Court of New Zealand, Wellington Registry, declined the appellant's application for leave to adduce new evidence on appeal in the case of Rosen v Guy. The court held that the proposed affidavit would provide the court with more recent information, but that information would be contested by the respondent, and the admission of the affidavit would effectively convert the appeal into a new hearing focused on the situation a number of months after the Family Court decision. The court held that the appellant's rights on appeal did not extend to having a new hearing focused on the situation a number of months after the Family Court decision.

Orders