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 have arisen after the date of the decision appealed against … that are or may be relevant to the determination of the appeal.

[5]        The principles in relation to the application of the rule were set out in B v A in the following terms:3

(a)      the Court can receive further evidence if it thinks that the interests of justice require it to do so;

2      Again this is not the child’s true name.

3      B v A [2020] NZHC 580; (2020) 26 PRNZ 58 at [25].

(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 relitigation 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; and

(h)      the standard to be met is “rightly high”.

[6]        The ultimate objective, however, is to ensure that the interests of justice are met. With respect to matters arising under the Care of Children Act 2004 (the Act) the best interests of the child are an overriding consideration. That does not mean that leave will necessarily be given to admit further evidence on appeal relating to the interests of the child. It is true that the Court will wish to ensure that all considerations relating to the best interests of the child are able to be addressed on the appeal, and it may allow updating evidence for that purpose. But the Court should also be careful when considering whether to receive such evidence as the Family Court is a specialist jurisdiction that has procedures to assess the best interests of the children, and the new evidence will not have been addressed through such procedures. Those procedures involve not only cross-examination at the hearing, but also the input of counsel for the child, and potentially reports under s 133. This Court will then be required to consider the Family Court’s decision in accordance with the normal approach to general rights of appeal — it is not an appeal against the exercise of a discretion, and involves the

Court considering the correctness of the application of principles established by the Act given the facts.4

[7]        The appellant submits that further evidence relating to the relationship between the two children and the effects of separation, Oscar’s relationship with his new step- siblings and the appellant’s new partner, the suggested difficulties with the relationship between the appellant and respondent, the respondent’s ability to care for his son, and suggested issues for Oscar since the Family Court decision amount to fresh and cogent evidence that could not be adduced in the Family Court because it has arisen since that decision. She submits it goes to the heart of her appeal.

[8]        The respondent and counsel for the child oppose the application. The respondent submits that the new evidence is unlikely to have an important impact on the outcome of the appeal which will be focused on the evidence that was before the Family Court, and the Court’s assessment of that evidence. It is submitted that special reasons to allow the new evidence do not exist and that it will cause delay. Counsel for the child emphasises that adducing further evidence would require a response and would lead to further contests. For example, the suggested psychological distress of Oscar would likely give rise to a potential need for a s 133 psychological assessment.

Assessment

[9]        I am not satisfied that the threshold for allowing fresh evidence to be filed on appeal has been met, and for this reason leave will be declined.

[10] A decision whether to allow further evidence in appeals relating to the care of children involves a different focus from most cases under r 20.16, and will likely involve a balancing of the factors referred to at [6] above. In AP v AZ Grice J allowed in such evidence, later noting that in appeals to this Court the “… inquiry goes beyond simply whether the original judgment was right or wrong in the application of the law, but extends to an inquiry about what outcome is in the best interests of the child”.5

4      Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32]–[35].

5      KP v AZ [2020] NZHC 1340 at [16]–[23] and [63] citing B v B [2008] NZFLR 1083 (HC) at [44].

The Court allows updating evidence to be filed in such appeals, often without controversy.6

[11]      Each case, and application, will be case specific, however. The proposed affidavit here essentially seeks to outline adverse impacts of the Family Court’s decision. It is true that it primarily covers events since that decision, and to that extent the evidence could not have been earlier provided to the Family Court. But it is not limited to evidence of “matters that have arisen after the date of the decision” as contemplated by r 20.16(3), as they were matters that were addressed as part of that decision. It is further evidence in relation to the same matters. It is effectively evidence directed at showing that the Family Court was wrong.

[12]      The Family Court was required to make its assessments based on the materials it had before it. Those materials addressed matters such as the impact of the separation of the two children. In making the assessments the Family Court was seeking to predict what would happen for the affected children. And as I have emphasised the Family Court has particular procedures to ensure the Court is as fully informed as possible in making these assessments. The Family Court is required to receive evidence under such procedures in accordance with procedural fairness, and I note that here the Court declined an application for the appellant to rely on an affidavit from her new partner as it was provided too late for the respondent to fairly respond to it.7

[13]      A key difficulty with allowing this evidence is that it raises matters that will plainly remain in dispute. It would be necessary to permit evidence in response, and then potentially allow cross-examination given the likely disputes.  Moreover, as   Ms Chisnall submitted, the most important matter raised in the proposed evidence concerns the suggested distress of Oscar, and this would likely require a further s 133 psychologist report if the Court is to be fully informed on that issue. It may also require more direct evidence from the pre-school involved. She also says that reopening such issues would likely cause further distress.

6      See, for example, Warin v Roy-Gapper [2017] NZHC 1019 at [3]–[4].

7      Rosen v Guy, above n 1, at [9]–[10].

[14]      The appellant is entitled to a full right of appeal, which includes this Court’s own assessment of the circumstances of the case against the requirements of the Act.8 But whilst appeals proceed by way of rehearing, it is a rehearing not a new hearing.9 As the Supreme Court said in Paper Reclaim Ltd v Aotearoa International Ltd an appeal “… by way of rehearing … does not contemplate a right to a new hearing of the evidence.”10 The appellant’s application effectively contemplates a new assessment based on what has transpired since the hearing in the Family Court last December. The further evidence involved would likely eclipse the evidence in the Family Court. That is not consistent with the right of appeal in my view.

[15]      It is apparent from the judgment under appeal that this was a difficult decision for the Family Court. Judge Grace described it as deciding what the least detrimental outcome for the child or children would be.11 He was critical of the appellant’s decision to relocate at all. The Court’s decision meant that Oscar was not an everyday part of a new household in Auckland along with his half-sister. But that was because allowing this would have been at the expense of his relationship with his father. On appeal this Court will need to assess this decision in light of the principles under the Act. But it should do so based on the evidence that was before the Family Court. Whilst the proposed affidavit would provide the Court with more recent information, 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 appellant’s rights on appeal do not extend that far.

[16]For these reasons the application for leave is declined.

Cooke J

8      Kacem v Bashir, above n 4.

9      See Care of Children Act 2004, s 143(4) and District Court Act 2016, s 124.

10     Paper Reclaim Ltd v Aotearoa International Ltd [2007] NZSC 1, [2007] 2 NZLR 124 at [16].

11     Rosen v Guy, above n 1, at [80].

Solicitors:

Morrison Kent, Wellington for the Appellant McWilliam Tyree, Wellington for the Respondent