South v South
[2018] NZHC 1369
•11 June 2018
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. FOR FURTHER INFORMATION,
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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2018-409-000071 [2018] NZHC 1369
BETWEEN ANNA SOUTH
Appellant
AND
JOHN SOUTH
Respondent
Hearing: 5 June 2018 Appearances:
S van Bohemen for the Appellant J H Wren for the Respondent
D E Standring for the Child
Judgment:
11 June 2018
JUDGMENT OF NATION J
Background
[1] John and Anna South’s marriage ended in October 2016 after a relationship of approximately nine years.1 Anna is an American citizen. For most of their marriage and through to the present time, Anna and John have lived in New Zealand. They have a four year old child, […].
1 In recognition of the above suppression, the judgment available for publication has been anonymised. The names used for the parties are fictitious.
SOUTH v SOUTH [2018] NZHC 1369 [11 June 2018]
[2] Before the separation and since, both Anna and John have been actively involved in parenting their son. They have a comprehensive shared care regime.
[3] Anna sought an order in the Family Court permitting their son’s relocation to her home town in the United States. John opposed the application. He sought a continuation of the status quo. If that was not possible, he sought a parenting order granting him the day to day care of their son.
[4] There was a hearing of the applications on 21 and 22 November 2017. On 21 December 2017, in a reserved judgment, Judge Moran:2
(a) refused Anna’s application to relocate the son to the United States;
(b) provided for continued shared care if both John and Anna continued to reside in New Zealand; and
(c) made a parenting order granting John day to day care of their son and providing for Anna to have contact on a specified basis, that order to apply if Anna is not living in New Zealand.
[5] On 7 November 2018, Anna filed a notice of appeal against that judgment. In the notice of appeal, she seeks relief by way of:
(a) an order granting Anna day to day care of the son in the United States with specified contact to John;
(b) an order setting out terms for shared care in New Zealand if the Court does not grant her day to day care on that basis; and
(c) if Anna is unable to live and work lawfully in New Zealand and does not have day to day care of the son, orders to be made permitting her to have care of him for three months of the year in the United States, with John to have day to day care of him in New Zealand for nine months of the year.
[6]The appeal is set down for hearing in the High Court on 1 August 2018.
2 […]
[7] This judgment concerns Anna’s application for leave to present further evidence on the hearing of the appeal.
The proposed evidence
[8] The proposed evidence is set out in an affidavit of 23 March 2018 with attached relevant documents. It concerns:
(a) Anna’s immigration status, including opinion evidence from immigration solicitors, Cavell Leitch, as to the prospects of her obtaining permanent residency in New Zealand in the future;
(b) her current employment situation and the difficulty she has faced in obtaining full time employment, appropriate for her particular qualifications, with the CDHB; and
(c) her current financial position with employment available for only 24 hours per week and her inability to support herself fully while continuing to live in New Zealand.
Principles to be applied
[9] The application is made under r 20.16 High Court Rules. Counsel accepted that the key principles are clear and well settled:
(a) Appeals generally proceed on the evidence that was before the lower Court Judge at the time of their decision. There is thus a presumption that appeals will be heard on the record as it exists. The parties are not entitled, as a matter of course, to attempt to bolster their case by filing new evidence in support of an appeal.3
(b) 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
3 VP v RH [2015] NZHC 260 at [5] and [16], citing Telecom Corporation of New Zealand Ltd v Commerce Commission [1991] 2 NZLR 557 (CA) at 3; Gibston Downs Wines Ltd v Property Ventures Ltd [2013] NZCA 546 at [24].
matters that have arisen after the date of the decision appealed against and that are or may be relevant to the determination of the appeal.4
(c) Evidence will be more readily admitted if it is cogent and credible so as to not require challenge in a way that could result in relitigation of previous issues or divert the focus of the appeal.5
(d) For evidence to be material, it must be necessary that the evidence is admitted to enable the Court to properly address the appeal.6
(e) The over-arching consideration will always be the importance of doing justice in the particular case.7
(f) With appeals involving issues over the care of children, a less restrictive approach is appropriate, consistent with the principle in s 4 of the Care of Children Act 2004 that the welfare and best interests of the child are paramount.8
[10] In his submissions, Mr van Bohemen emphasised that the appeal will proceed by way of rehearing. He argued that, as the welfare of the child is the paramount consideration, on a rehearing, the Court should have the best evidence available. It is not, however, normally in the best interests of a child that parents should be able to fully relitigate issues concerning their care. On an appeal, the presumption is that, while the appeal proceeds by way of rehearing, it is a rehearing on the record of the evidence that was presented in relation to the decision which is on appeal.
4 High Court Rules, r 20.16(3); The Foundation for Anti-Aging Research v The Charities Registration Board [2015] NZCA 449 at [51].
5 Hodgson v Hodgson [2015] NZCA 404 at [42] citing Rae v International Insurance Brokers [1998] 3 NZLR 190 (CA) at [192]-[198].
6 The Foundation for Anti-Aging Research v The Charities Registration Board, above n 3, at [59].
7 Rae v International Insurance Brokers, above n 4, at [192]; Re Greenpeace New Zealand Inc
[2011] NZLR 815 (HC) at [32]-[33].
8 Coates v Bowden [2007] 26 FRNZ 210 (HC) at [22]; VP v RH, above n 2, at [19]; WH v Chief Executive Ministry of Social Development [2008] NZFLR 1069 (HC) at [31] and [34]; QH & LH v Chief Executive of Ministry of Social Development [2013] NZHC 240 at [19].
New evidence as to Anna’s immigration status
[11] Judge Moran referred to Anna’s immigration status at various points in her judgment:
[54] Significantly, [Anna] says that her ability to remain living and working in New Zealand is fraught with uncertainty. She indicated that while she could apply to extend her visitor’s visa she did not believe that she had any real prospect of extending her work visa or obtaining residency. However, as I have indicated, counsel have advised that following the hearing, [Anna] has been granted an interim visa for a further six months and has other options available to her. That is a matter to which I will return.
…
[74] If the relocation were not permitted but [Anna] was required by Immigration New Zealand to leave this country, [the child’s] sense of loss would also be deep and profound and one can only speculate on the long term psychological harm that may flow.
…
[81] [Anna] contends that she has no alternative but to leave New Zealand because her application for residency was declined. Certainly, the ground upon which she relied, namely her partnership status, is no longer available to her, but I am not satisfied that she has exhausted or even explored the other options. She could have appealed the decision made in February of this year on the grounds of special circumstances. She chose not to. She still has options available to her including an application for a work visa and/or an application to the Minister for a Special Direction to Immigration New Zealand that she be granted residence in New Zealand. I am mindful that an application to the Minister involves an exercise of discretion, but counsel have referred me to a number of authorities where that discretion has been exercised on humanitarian grounds and in particular, when the welfare and best interests of a child are directly and profoundly affected as in this instance.
…
[86] It is incumbent on [Anna] to use every endeavour to obtain New Zealand residency so that she is available to her son and [the child] can continue to thrive and develop as he has to date within the country in which both of his parents made a deliberate choice to bring him up. This arrangement reflects [the child’s] welfare and best interests and accords with the principles contained in section 5 of the Act. A relocation to the United States does not.
[12] The Family Court’s judgment was reached in the context of Anna having an interim visa for six months from 5 December 2017 pending determination of an application for a work visa. The proposed evidence is to inform the Court that, on 9 February 2018, Anna was granted a three year work visa. The Cavell Leitch opinion refers to the way the current three year work visa applies only for the specific
employment she is currently engaged in with the Canterbury District Health Board (CDHB) and the difficulties and uncertainty she will face in obtaining residency after the current visa expires in February 2021.
[13] All counsel agreed that the High Court should have before it on the hearing of the appeal updating evidence as to Anna’s immigration status. That evidence is set out in paragraphs 2-6 of Anna’s affidavit, together with document 2 in the bundle of documents referred to in paragraph 5. The evidence is material to the Court’s determination as to whether the orders made in the Family Court were in the best interests and welfare of the parties’ son. As Mr van Bohemen acknowledged, the new evidence is helpful to John’s position in that it establishes that, from an immigration status point of view, Anna can lawfully remain in New Zealand for the next three years of their son’s life and she will also be able to travel to the United States and return to New Zealand during that time.
[14] The child’s counsel, Mr Standring, said that, for the child, the granting of the three year work visa was welcome news because it would mean the child is more likely to have the continuing active involvement of both his parents in his day to day care over the important next few years.
[15] The granting of the three year work visa is also an example of Immigration New Zealand making an exception to their normal policy, notwithstanding the advice of her counsel to the Family Court on 13 December 2017 that Anna did not meet the Immigration New Zealand criteria for such a visa.
[16] Anna also wishes to adduce evidence of an opinion from her immigration solicitors, Cavell Leitch. In her affidavit, Anna summarised that evidence as being:
a. I was ineligible to get a work visa in accordance with Immigration New Zealand;
b. the exception whereby I was granted a visa was very rare;
c. Immigration New Zealand might not make such an exception again and that if I apply for a further visa I will be required to satisfy all immigration requirements and instructions;
d. If I am either offered a different position with CDHB or if I obtain employment with a different employer, I will need to apply to Immigration New Zealand to vary my visa conditions;
e. that my visa does not provide me with a pathway to residency in New Zealand because it was granted as an exception to instructions and is not a “work to residence” visa;
f. that to obtain residence, I would need to obtain fulltime, permanent employment and a “work to residence” visa based on that employment, or meet one of the other Immigration New Zealand criteria for residence;
g. that being the mother of a New Zealand citizen (our son, ….) does not provide a basis for obtaining residence in New Zealand;
h. that if I am not able to find fulltime employment or some other pathway to residence within the next 3 years, I will have no right to remain in New Zealand beyond 2021 and my options at that time will be:
i.Apply for a further visa; or
ii.If such visa application is not successful, appeal to the Immigration Protection Tribunal and to the Minister of Immigration.
[17] One aspect of the Cavell Leitch opinion, consistent with the point her counsel made, is that Immigration New Zealand, in granting a special three year work visa – Essential Skills, made what Cavell Leitch considered to be a “very rare” exception for the benefit of Anna. The fact she will need to apply to Immigration New Zealand if she changes her employment is self-evident from the terms on which the three year visa has been granted. The Cavell Leitch opinion indicates that she will face difficulties in extending her visa.
[18] The Cavell Leitch opinion does not preclude the possibility of her visa being extended as a result of her:
(a) obtaining full-time permanent employment and a work to residence visa based on that employment; or
(b) meeting one of the other Immigration New Zealand criteria for residence; or
(c) if a subsequent application for a visa is not successful, obtaining a visa on application to the Minister of Immigration or through a successful appeal to the Immigration Protection Tribunal.
[19] Mr Wren says that John has obtained a countervailing opinion from Lane Neave, immigration lawyers. That opinion has been made available to other parties but was not made available to the Court. I understand that it puts a different perspective on the issues which Anna will face in seeking a further visa but is not contradictory of assertions that have been made by Cavell Leitch. Both Mr Wren and Mr van Bohemen have confirmed that, if the Cavell Leitch opinion is part of the evidence, John would be able to present the Lane Neave opinion as part of his evidence in reply. Neither counsel would seek to cross-examine the immigration lawyers over the opinions that have been expressed. Mr Wren, however, indicated he would want to cross-examine Anna over issues that might be relevant in assessing what, if any, weight should be given to the Cavell Leitch opinion in deciding whether the decisions made by the Family Court were in John’s best interests.
[20] Mr Standring, as counsel for the child, suggested the opinion evidence from both Cavell Leitch and Lane Neave is essentially uncertain, speculative and predictive, and would be of no value in the Court deciding what would be the best outcome for the child. He submitted that, because of this, the evidence will not be material to the decision which the High Court will have to make on the hearing of the appeal.
[21] In their submissions, all counsel accepted that, for new evidence to be admitted, it would have to be material to the decision the Court has to make.
[22] With the new evidence, that Anna has a work visa for the next three years, there is more certainty than there was in the Family Court that she will be able to stay lawfully in New Zealand for that time while she is employed by the CDHB or as otherwise subsequently approved by the Immigration Department.
[23] The Cavell Leitch opinion evidence which Anna now seeks to adduce does not otherwise materially change the situation from what it was when matters were considered in the Family Court. There is potential for Anna to obtain a visa for her residency in New Zealand beyond February 2021 but there is uncertainty as to that, just as there was uncertainty when matters were contested in the Family Court.
[24] Introduction of the Cavell Leitch opinion is thus unnecessary for Anna to advance her case. In that sense, it is not necessary, in the interests of justice, for that opinion evidence to be adduced. Admission of the opinion evidence will unnecessarily widen the scope of matters which the Court will have to consider because, if that opinion evidence is adduced, there will be a responding opinion from Lane Neave. Mr Wren has said he would want to cross-examine Anna in relation to matters raised in the Cavell Leitch opinion. Mr van Bohemen has said that, if contradictory evidence is filed, then the principles of natural justice would require the Court to give Anna the opportunity to respond.
[25] I would leave it to the Judge hearing the appeal to decide if such cross- examination should be permitted but there is at least the potential for that to happen, further complicating and extending the proceedings. All of that would not make any material difference to the decision which the High Court has to make on the hearing of the appeal.
[26] I thus decline leave to Anna to adduce the evidence in paragraph 7 of her affidavit and, through that, the introduction of the Cavell Leitch opinion.
Anna’s employment situation
[27] The proposed evidence as to this is in paragraphs 8-19 of Anna’s affidavit. In that evidence, she speaks of her particular qualifications, her evidence that there are no permanent full-time positions available within the CDHB and no scope for employment within the private health sector in Canterbury for her skill-set. She proposes to give evidence of her unsuccessful applications to the CDHB for two fixed term, 12-month contracts, one for a full-time position and one for a part-time position. She gives evidence that her current employment is in a permanent part-time position, a position for which she is over-qualified and which is for 48 hours per fortnight.
[28] The evidence as to her current employment is not new. The letter confirming her employment on those terms was dated 6 June 2017. If it was not before the Family Court for the hearing there, it could have been.
[29] Anna’s case before the Family Court, as referred to in Judge Moran’s decision, was:
[53] [Anna] says that at 35 years of age, she is compromised socially, professionally, emotionally, financially and legally while living in Christchurch and contends that she has to leave for her own wellbeing and to ensure that she can provide for all aspects of [the child’s] care.
[54] Significantly, [Anna] says that her ability to remain living and working in New Zealand is fraught with uncertainty.
…
[84] [Anna] contends that she has been unsuccessful in obtaining further work hours from CDHB, and is currently limited to working only 26 hours per week. I am not satisfied that she has used her best endeavours to extend those work hours. [Anna’s] skill base and qualifications are an asset to any health provider and include, among other qualifications, a BSc in Speech Pathology and Audiology and a MSc in Speech Pathology.
[30] Although Judge Moran said she was not satisfied [Anna] had used her best endeavours to extend her work hours, there is nothing in the decision to indicate that this was crucial to the decisions which she ultimately came to on the applications before her. She said that Anna’s primary reason for seeking to relocate is the trauma she has suffered through the breakdown of her marriage, a grief which Judge Moran accepted as genuine.
[31] Mr van Bohemen submits that, particularly where the Court will have to decide whether the decisions were appropriate, having regard to the welfare and best interests of the child as the first and paramount consideration, the Court should have the best and most up to date evidence relevant to matters at issue. I accept that is so but it will be relevant only if the new up to date evidence is going to be material in the sense of advancing either party’s case or for the Court in determining what ultimately is in the child’s best interests.
[32] It is apparent from a careful reading of Judge Moran’s decision that what she ultimately weighed up was the benefits for the child of his remaining in New Zealand and having a continuing relationship with his father against the potential benefits and detriments he would suffer if he were to relocate to the United States with his mother. Even if Anna decides she has to move back to the United States for better employment prospects, on the appeal, by way of rehearing, the High Court will have to make the
same assessment. The issue of whether Anna can obtain a full-time position, utilising her full qualifications and, through that, be able to obtain a higher income in New Zealand, will not change the issue which the High Court has to consider. The consequences for the child, which the Court will have to weigh in the balance, will be the same.
[33] Admission of the evidence does not have the potential to strengthen Anna’s case. So, again, admission of the evidence is not mandated by the interests of justice. Admission of the evidence could properly be seen as an attempt to simply bolster Anna’s case as it was before the Family Court. It would have the potential to complicate and prolong the hearing. The inferences which Anna would seek the Court to draw from the new evidence, as to the limited scope for full-time employment at the appropriate level, could quite properly result in the Court having to permit cross- examination as to this new evidence.
[34] For that reason, I must and do decline leave for Anna to present the evidence in paragraphs 8 to 19 of her affidavit.
Anna’s financial situation
[35] Anna proposes to give evidence as to how she cannot afford to live in New Zealand on her current income. She says that the only way she has been able to survive financially since her separation is through the financial support she has received from her parents in the United States. She is 36 years old and wants to be self-supporting, believes the income here is significantly less than she could earn in the United States and there would be more opportunities for her in the United States to use her specialised skills.
[36] Judge Moran referred to Anna’s evidence as to her financial situation if living in Christchurch:
[53] [Anna] says that at 35 years of age, she is compromised socially, professionally, emotionally, financially and legally while living in Christchurch and contends that she has to leave for her own wellbeing and to ensure that she can provide for all aspects of [the child’s] care.
…
[63] [Anna] opined that she would readily obtain employment in her specialist field but she provided no corroborative evidence of this and has seemingly taken no steps to obtain work or to ascertain its availability. What is clear however, is that the location in which [Anna] obtains employment will dictate where she lives and that may be some distance from the home of either parent. If that is the case then they will not be available to provide after school care for [the child], and that will create another issue for [Anna] to address.
[37] Judge Moran, at para [84] of her judgment, did suggest that she was sceptical as to whether Anna had done all she could to obtain more extensive employment but there is nothing in the judgment to suggest the Judge’s ultimate determination was based on a finding that Anna could afford to support herself financially in New Zealand.
[38] Anna’s evidence before the Family Court was that she was compromised financially in living in New Zealand. The further evidence she is seeking to adduce now as to her financial situation is to the same effect. It is thus not new evidence. It has not been demonstrated to me and it is not apparent from Judge Moran’s judgment that this proposed new evidence would be material in the sense of potentially affecting the decision that Judge Moran came to or the decision which the High Court will have to come to on the hearing of the appeal. In essence, the Family Court decision did not involve any determination as to whether Anna could remain in New Zealand or whether she would have to return, for any of the reasons she advanced, to the United States. What Judge Moran had to decide and what a High Court Judge will have to consider on the hearing of the appeal is whether it would be in the child’s best interests for him to relocate to the United States if it is Anna’s choice to return there.
[39] Further detail as to her current financial situation in Christchurch will not change the issue which the High Court has to consider. It will not materially assist Anna with the case she is making. I have not yet seen all the evidence which was put before the Family Court or the transcript of the cross-examination which occurred. Mr Wren said there was extensive cross-examination of her evidence as to her financial situation. That would indicate that the evidence she seeks to adduce would still be regarded as contentious. Mr Wren would seek to cross-examine her on this new evidence. Admission of the evidence would thus potentially complicate and extend the hearing. My assessment is that, if this were to happen, it would not ultimately
have any bearing on the decision which the High Court will have to make on the hearing of the appeal.
[40] For these reasons, I decline leave to Anna to adduce the evidence which is in paragraphs 20 to 27 of her affidavit and the associated document 8 in the bundle.
Conclusion
[41] Anna is accordingly granted leave to adduce on appeal the evidence contained in paragraphs two to six of her affidavit and documents one and two associated with that affidavit. Leave is declined with regard to the balance of her affidavit and the other documents contained in the bundle.
[42] Mr Wren suggested that, if leave was granted to adduce part of the evidence, Anna should be required to swear a new affidavit which omits the evidence and documents which are to be excluded. I do not consider this is necessary. The Court will draw a line through the evidence which has not been admitted and remove from the bundle the documents which are not being admitted as part of the further evidence.
Solicitors:
S van Bohemen, Barrister, Christchurch Jason Wren, Barrister, Christchurch Dennis Standring, Barrister, Christchurch.
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