SS v SK HC Hamilton CIV-2010-419-768
[2010] NZHC 2341
•20 December 2010
NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV-2010-419-768
UNDER the Domestic Violence Act 1995
IN THE MATTER OF an appeal under s 91 of the Act
BETWEEN SS Appellant
ANDSK Respondent
Hearing: 7 October 2010
Appearances: S Bhardwaj for Appellant
J Niemand and F C Amarasekera for Respondent
Judgment: 20 December 2010
JUDGMENT OF COOPER J
This judgment was delivered by Justice Cooper on
20 December 2010 at 9.30 a.m., pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
Bridge Law, PO Box 9114, Hamilton
Niemand Peebles Hoult, PO Box 1028, Hamilton
SS V SK HC HAM CIV-2010-419-768 20 December 2010
[1] The appellant has appealed against a decision of Judge Brown delivered in the Family Court at Hamilton on 12 February 2010. The proceedings before the Court were an application for a final protection order that had been made by the present respondent under the Domestic Violence Act 1995.
[2] By his appeal the appellant asserts that the Judge erred by continuing with the hearing in the absence of a Punjabi interpreter once it was plain that a witness, Mrs S (who was the appellant’s mother), was not proficient in the English language, nor in Hindi, the language spoken by the interpreter who was present. Another ground of appeal is that counsel who acted for the appellant in the District Court failed to call available evidence which would have assisted the Family Court in resolving relevant facts at issue.
[3] The appellant’s appeal was lodged out of time, but by agreement between the parties and with the concurrence of Clifford J who dealt with the appeal at a call- over on 25 August 2010, that issue has been deferred for another day pending determination of the appellant’s interlocutory application which is the subject of this judgment. That application seeks orders that five affidavits be admitted as new evidence at the hearing of the appeal. The appellant’s application also seeks an order that the respondent produce information relevant to her immigration application and medical records.
[4] The proposed new evidence is in the form of affidavits sworn on 25 June and
24 August 2010. In addition, the appellant filed an affidavit in support of the present application affirmed on 24 August 2010. The application is opposed by the respondent. In order to place the rival arguments of the parties context it is necessary to explain the basis on which the matter was decided in the Family Court.
The Family Court judgment
[5] In the decision under appeal, the Judge explained that the respondent in this
Court had come to New Zealand from India in 2009. She and her family had agreed
to a formal arranged marriage with the appellant. When she came to New Zealand her mother accompanied her and she lived with her in the appellant’s family home where he resides with his parents and siblings. The appellant and respondent did not get on, no intimacy developed between them and the marriage was not consummated. On 10 November 2009 the respondent left the family home and called the police for assistance. The Judge found that since that time she has been living in a refuge, resisting requests that she return. The circumstances have given rise to strong feelings and it was the respondent’s evidence that she cannot return to India because her family there have rejected her out of shame.
[6] The application under the Domestic Violence Act was advanced on the basis of three distinct sets of allegations. The first concerned psychological abuse, but the Judge rejected that as a basis on which he could make an order. He took the same approach with respect to allegations of sexual violence (the respondent claimed that the appellant had attempted to pull off her clothes). However, the Judge decided that the appellant had assaulted the respondent on three occasions. At [7] the Judge referred to this aspect of the case as follows:
[7] The real question is whether Mr S was physically violent to Ms K on three occasions. The first allegation is that in September 2009 Mr S slapped Ms K in the face after becoming angry that she was spending too much time on the phone talking to her sister in India. The second is that in October
2009, during an argument, Mr S grabbed Ms K’s arm while she was in the kitchen, pushed it into the oven and caused her to touch a hot element with
the result that her hand was burnt. The third incident in October 2009 is
alleged to be that when Ms K refused to talk to Mr S when he wanted, he grabbed an iron rod and hit her hard on the ankle as she walked up some garden steps. Mr S denies that he slapped Ms K. He says that she burnt her hand accidentally in her unfamiliarity with electric ovens while she was helping Mr S’s mother in the kitchen. He says that he never hit her with an iron rod and that she hurt her ankle by falling against an outside barbecue while running up the outside steps to answer a phone. It is important to appreciate Ms K herself accepts that after the injury was seen she told Mr S’s family that it was an accident. She says that she did this because when she told the family of the slap they treated her as a liar.
[7] At [8] the Judge referred to what he described as the “familiar difficulty” of deciding disputed allegations arising out of domestic situations “without any external objective evidence”. He considered that the difficulties were even more pronounced than usual in the present case because the Court was carrying out its task “within a
culture outside its own”. The essential basis of his findings in favour of the respondent were set out at paragraphs [9] – [11]:
[9] This is a situation in which one party is necessarily telling lies. I have come to the conclusion after reflection, that I sufficiently prefer Ms K’s evidence to find the three allegations of physical violence established. My first reason is that I experienced her in the courtroom as honest in her evidence and genuine in her predicament. I could not imagine her capable of the very considerable cunning required to make up such an odd collection of allegations on the basis that they would ultimately have more credibility than more usual complaints. I secondly found her body language consistent and appropriate to what she was saying. I found Mr S’s body language not always totally consistent with the fact that his position means that Ms K was now completing a nightmare by telling simple and damaging lies about him.
[10] It is important that I do not confuse a lack of credibility in Mr S’s mother’s evidence with a lack of credibility in Mr S, but I reject Mr S’s mother’s evidence. Her affidavit evidence was that she had been told by Ms K of the accident on the steps. Under cross-examination she forgot her position and said that she had seen the incident. Her support of her son’s position in regard to the other incident then becomes unreliable, particularly when, by her account, the police appear to have misrecorded one aspect of the matter when they interviewed her.
[11] On the balance of probabilities, I find the three allegations of violence are made out. …
[8] He went on to set out reasons why, having found those three allegations of violence had been established, an order should be made to protect the respondent.
[9] As can be seen, an important reason for the Judge’s conclusion that the evidence of the respondent was to be preferred to that of the appellant was his adverse view of the credibility of Mrs S. He rejected her evidence about the manner in which the respondent had sustained an injury to her leg. The Judge’s decision to reject Mrs S’s evidence on that incident also caused him to discount her evidence in respect of the other incident to which she was a witness and in which the respondent’s hand was burned on an element in the oven.
The hearing in the Family Court
[10] In his affidavit sworn in support of the present application the appellant said at paragraph 8:
My mother [Mrs S], gave evidence in the Court in support of defence to the application for protection order. [Mrs S] got totally confused with the Court environment, the language of the interpreter, questioning of the Respondent’s lawyer in fast English and being first time ever in the court. She objected to the interpreter but the Court continued to use the same interpreter. [Mrs S] finally gave up and spoke in her own broken English, and often did not finish her sentences completely. She got confused in her evidence with the two incidents alleged by the Respondent – one which she saw and the one which she was told afterwards by the Respondent. I rely upon [my mother’s] affidavit of 22 June 2010.
[11] In her affidavit, affirmed in fact on 25 June (not 22 June) Mrs S deposed that:
3. I gave oral and Affidavit evidence in the Family Court.
4. I had been to a school in India for about 5 years. I only learnt
Gurmukhi (aka Punjabi). I learnt no other language at school.
5. There is some basic similarity between Hindi and Punjabi although both these languages are quite different in their scripts and speech.
6. I cannot apprehend Hindi fully. My ability to understand Hindi lies somewhere between 50 to 60 per cent.
7. The interpreter provided in the Family Court could only speak Hindi, and even his Hindi (i.e. Fiji Hindi) was not of a good standard. Fiji Hindi is different from Indian Hindi. I was finding it very difficult to understand the interpreter.
8. I understand basic conversational English, about 50 to 70 per cent depending upon the context of the conversation. When I speak in my broken English I can only say a little but not all of it due to the lack of my vocabulary. I cannot understand difficult double negatives or lengthy sentences at all. The Court language was very difficult for me to comprehend. This was my ever first Court appearance.
9. When I found it so difficult to understand the interpreter, I resorted myself to speaking in my own broken English language. I became completely confused as to what was happening. I advised the Court I did not understand the interpret i.e. his Hindi.
10. I found that the Respondent’s lawyer was using lengthy, and difficult English while speaking fast for me to understand. I was at a loss at to what was happening. I simply gave up. At one point P’s lawyer told the Respondent’s lawyer to slow down but this never occurred.
11. I do remember the Presiding Judge telling me something about using the interpreter but I did not understand it properly and the interpreter never translated this to me either. I am an honest person and had told everything correct in my affidavit.
[12] At the hearing in the Family Court an interpreter had been arranged to assist with respect to the respondent’s case. The interpreter spoke English and Hindi.
There was no interpreter present able to speak in the Punjabi language. There is a transcript of the evidence given in the Family Court and counsel for the appellant had also arranged for a CD-rom to be provided to this Court. It contained a recording of the evidence given.
[13] It is necessary for present purposes to note the evidence before the Family Court about the injury that the respondent sustained to her leg. She claimed that it occurred as a result of the appellant hitting her with an iron bar. In an affidavit sworn in the Family Court, however, Mrs S said that the injury had been self- inflicted in the following circumstances:
I was at home with [the respondent] on the day that she hurt her leg. She went outside to hang the washing and later came inside and told me that she had fallen against the barbeque at the back of the house. She said she was rushing to answer the telephone and had tripped on some steps and scraped her leg against the edge of the barbeque. The back of our house is quite steep and sloped and you need to take care when walking up or down the narrow steps. [The respondent] had a long scratch mark on her leg from this incident. She put some cream on the scratch and said to me “Mum my jeans keep rubbing against it”. I told her that she should change out of her jeans and put an Indian suit on as it would be loose fitting and softer on her skin, but she did not do this. I told her that when [the appellant] came home he could take her to the accident and emergency clinic in case there was small bits of metal in the wound. [The respondent] said no she’ll be okay.
[14] In the hearing in the Family Court questions were directed to this incident in cross-examination of Mrs S when there was the following exchange, which it is necessary to set out in full. The passage also includes questions which were asked by the Court which are indicative of a concern that he had about the evidence.
Q. In your affirmation you said that you were at home the day that SK
hurt her leg?
A. Yes, yes.
Q. And you were inside the house? A. Yeah, yeah.
Q. Where in the house were you?
A. I’m in the house downstairs, mmm. Q. What is downstairs?
A. We go downstairs and upstairs you know, yeah.
Q. What –
A.I just took the rubbish downstairs, the phone was ringing and she was doing the washing outside the line and she was rushing to answer the telephone and then she told me I got hit outside, um, by the barbecue, that’s all told me she got big scrape on her leg, yep.
Q. How many telephones do you have in your house? A. Three.
Q. And are they cordless phones? A. Yep.
Q. No cord? A. Ah, no.
Q. Where are the telephones?
A. All upstairs. We got no phone downstairs. Q. Three telephones upstairs?
A. Upstairs, yeah.
Q. And you didn’t answer the phone?
A.No, when I was, um, I was you know (inaudible) onto coming upstairs she already you know pick it up.
Q. And SK told you that she banged, she fell on the stairs?
A.Yeah, yeah, she’s on the, um, yeah, outside you know, um, with the, by the barbecue she said, very annoyed she banged into the barbecue and I don’t know what she did but I, she just told me you know after, yeah.
Q. Are there some photos in front of you?
A. Oh at the back there are, yeah, yeah, that’s the one. Q. What are the photos of?
A. Pardon?
Q. What are the photos of?
A. The photos of down the, the backyard. Q. Of your home?
A. Home, yeah, that’s the backyard, yeah.
Q. Can you point to where SK was rushing to?
A. She was rushing from the top on the clothesline, see the steps here and then –
Q. Can you point to where SK was rushing to?
A. She was rushing from the top on the clothesline, see the steps here?
And then –
Q. Can you hold that up to… THE COURT:
Q. So I can see. She’s rushing from the top? A. Yeah, yeah.
Q. To the clothesline? A. Yep.
CROSS-EXAMINATION CONTINUES:
A.And she bang the leg on – we had a barbecue you know, down here and this, the chair fell down, you know and I don’t know what she did, she just said to me why the barbecue, the chair must be scrape on her leg, must be edge of the barbecue, you know I just saw the big scrape on, yeah, I show the policeman the other day too.
Q. So there was a chair?
A.Yep. The chair and a, she, the chair was upside down, you know and then, then I just picked that up and then she got bang to the barbecue edge.
Q. Did you see it happen? A. Yeah, yeah.
Q. You saw her fall? A. Saw her, yeah.
Q.She, in your affidavit, or your affirmation you said that, SK told you what happened.
A.Yeah, yeah she did told me, yeah inside, when she come (inaudible) she said, “Mum I got hut from outside.” Then when I went outside and I picked the chair up, she said, “Hit by the barbecue.”
Q. What you are telling us today is different to what you have said in your –
A. What’s different?
Q. In your affirmation you have not said anything about the chair.
A.I mean you know I just picked the chair up, I don’t know what she fell down on top of the chair or hit with the barbecue edge. The chair was there, the barbecue was there, you know, they just close. Very close, yeah. She hit with the barbecue you know, with the barbecue edge.
Q. You seem a little bit confused about what happened? A. Yes, yes, I do.
Q. You are confused about what happened? A. Mhm.
Q. SK is saying that SS hit her with an iron rod.
A.Yeah she did yeah, but wasn’t true you know. I was home with her all the time, you know. That happen, that she told me you know I got, she tell all the family members too, not just only me.
Q. She told everybody what happened? A. Yeah, yep, everybody.
Q. When did she tell everybody what happened?
A.That same night, SS take her to my, um, brother’s house she told my niece. (inaudible) She wash with the, um, Dettol and SS put the Savlon cream on same night when she got hit.
Q. So SK told the family –
A. Yeah. She got hit. She hit her leg on outside. I was answering the phone. She told family too. All the family members know.
THE COURT:
Q. Did you say, “I was answering the phone?” A. (inaudible)
Q. Did you just say, “I was answering the phone?” A. No.
Q. You didn’t say that? A. She did.
Q. You didn’t say, “I was answering the phone?” A. Nah, she did, SK did.
CROSS-EXAMINATION CONTINUES:
Q. I put to you that you don’t know what happened to SK’s leg and that
SS hit SK in the leg?
A. Who said that?
Q. That is what I am saying happened?
A.No, he didn’t hit her leg. I saying that she was told me straight away that she got hit. SS was at work that time.
[15] In re-examination counsel asked Mrs S to confirm exactly what the respondent had told her about the incident. Mrs S replied:
She told me, “I hit my leg outside with the, with the, by the barbeque” she said to me.
[16] This was followed by further questions from the Court’
Q. You said to me you saw it happen didn’t you? A. Yeah, I saw that happen.
Q. You saw it happen, did you say that to me? A. Ah, she just –
Q.No, I don’t to answer another question. Did you say to me, “I saw it happen?”
A. Yeah, I saw that happen.
Q. So you say you were actually watching when it happened? A. Yeah.
Q.So why did you say in your affidavit that she told you what happened?
A. She did, she did told me inside.
Q.Why would she need to tell you what happened if you were outside when it happened?
A. Yeah. And then when I went outside and then I just picked the chair up then she’s, you know, and, um, that what happened, you know. She said, she said to me, “That happened mum, outside.”
[17] Counsel for the appellant submitted that there is doubt as to whether Mrs S understood the questions that were put to her by counsel for the respondent and by the Judge. Mr Bhardwaj accepted that it was for the appellant to arrange for a Punjabi interpreter if of the view that that was necessary. Nevertheless, counsel then acting for the appellant (not Mr Bhardwaj) had not taken that step. The consequence was that her lack of comprehension of the questions and her inability accurately to respond had led the Judge into error and a potential injustice had been the result. Although at an early stage the Judge had given a direction that if Mrs S did not understand the question that was being put she was to tell him, that direction itself had not been translated and, as a person for whom English was a second language, giving evidence in Court for the first time, she may not have felt able to say when she did not understand, even if that was the position.
[18] For the respondent, Mr Niemand submitted that Ms Amarasekera, who was counsel for the respondent in the Family Court and who cross-examined Mrs S, had used short, focused and appropriate questions and had generally drawn responsive answers from Mrs S. Mrs S had been asked simple questions about who answered the telephone, yet in one instance she had given evidence that the respondent had answered it and in another instance that she herself had answered it. However, when queried by the Family Court Judge, Mrs S had denied that she had given that evidence. It was proper for the Family Court Judge to take that inconsistency into account when assessing her credibility.
[19] Similarly, in relation to the injury which the respondent sustained to her leg, Mr Niemand submitted that simple questions had been posed by the Judge himself about why the respondent would have needed to tell Mrs S what had happened outside if Mrs S herself had been outside at the time, and Mrs S had not been able to provide an explanation. Mr Niemand submitted that Mrs S’s voice in answering the questions had appeared “deflated and unsure”. He invited the Court to conclude that her uncertainty arose not from a failure to understand the questions put to her but, rather, the inconsistency of the evidence that she had already provided.
[20] Although I was initially inclined to deal with the issue on the basis of the transcript, having heard counsel’s argument I decided that it would be desirable if I actually listened to the recording of the evidence that was given. There is no reason to ignore the benefits of modern technology in dealing with an issue of this nature and it has been beneficial in this case.
[21] Having listened to the recording, I have come to the clear view that there is a real risk that Mrs S, because of her unfamiliarity with the English language did not give answers to the questions put by counsel and by the Judge which conveyed the information that she wished to convey. It is possible that a different picture would have emerged had an interpreter been present, able to speak her native language of Punjabi. I consider too that it may not have been made sufficiently plain to her that if there was any aspect of a question that she did not understand she must advise the Court that that is the position. I do not mean to criticise the Judge in that respect, but having heard the recording (there is no written record of this in the transcript) the instruction that Mrs S was to tell the Judge if she did not understand a question was not in fact given directly to her, but it arose in a discussion near the outset of her evidence between the Judge and the Hindi interpreter who was present.
[22] Mrs S gave her evidence-in-chief in a straightforward way which consisted simply of stating her name and address, her occupation as a housewife and confirmation that she had made an affirmation. The cross-examination then began but soon got into difficulty when Ms Amarasekera asked her whether she had supported her son, the appellant, through the separation. Her initial answer was no, but when the question was put again in slightly different terms she said:
No , what this mean, you know.
[23] Very shortly after that counsel for the appellant interrupted. Again, what she said is not set out in the transcript, but having listened to the recording I note that she said:
If I may. Although Mrs S has quite a good grasp of English I wonder if it might be helpful on some questions she may not understand if the interpreter could assist?
[24] The Judge then asked the interpreter if he would assist. Following a discussion between him and Mrs S the Judge intervened to inquire what it was that the interpreter was saying to Mrs S. The interpreter’s response was that her Hindi was not very good as well, that she spoke Punjabi which he did not speak. The Judge then inquired whether the interpreter had the sense that he would not be able to assist Mrs S with her evidence. The interpreter responded by stating that she had told him that her Hindi was not very good. Mrs S then began speaking again and the interpreter told the Judge “she wants me to give it a shot. She wants to know what separation means”.
[25] The Judge then said:
I want to be very clear here. If Mrs S does not understand a question she tells me and I ask you to simply translate the question into Hindi and if that helps Mrs S that’s fine and if she wants to answer in a language that allows you to literally translate that’s fine too. But what we can’t allow is for there to be a conversation going on between the two of you. It’s a question of translating the question and translating the answers. If you can’t do any one of them just tell me. That’s fine thank you. Just go on from there thanks.
[26] It is not clear to me that Mrs S would have followed all this and understood that she was being told that she must say whether or not she understood questions with which she found difficulty. Moreover, the fact that she had difficulty with the word “separation” shows that her grasp of English was obviously not great. Another example of which that might be said occurred later in the cross-examination where, asked if she would help her son whenever he needs help she says, “No, that’s a hard question”. From the recording it is clear that the balance of the answer she gave in that line of the transcript should accurately have shown that she was asking for assistance from the interpreter.
[27] She did not appear to have any difficulty in responding to the questions posed by counsel with respect to the incident in which the respondent’s hand was burned at the oven. The real difficulties arose in respect of the questions concerning the injury to the respondent’s leg. She is shown as having answered counsel’s question, “You
saw her fall?” in the affirmative. Having heard the evidence I am not satisfied that she necessarily understood the question as being whether she had seen the actual incident in which the respondent fell. Possibly, what she was asserting was that she had seen the result of the fall. Similarly, when counsel put to her that she was “confused about what happened”, I am not sure what should be taken from her affirmative response. It is possible, because of the path that the cross-examination had taken immediately prior to that point, that Mrs S was talking about the confusion that she was experiencing about the question. Certainly, she was very firm in her denial that the appellant had hit the respondent with a rod, acknowledging that the respondent had said that, but denying that it had occurred and saying that she had been at home with her all the time. Not only had the respondent told her how the injury was sustained, but she had told other family members as well.
[28] I consider there is similar confusion about the question and answer which caused the Judge to intervene. Having said that the respondent had hit her leg outside, the transcript shows her saying:
I was answering the phone. She told family too. All the family members know.
[29] Having listened to the recording I consider that the meaning she was endeavouring to convey was:
“I was answering the phone” she told family too.
To render that in more usual language, I suspect the answer she wanted to give was: “She told the family also that she was answering the phone”. In other words, the incident happened outside and she hit her leg when going to answer the phone.
[30] This is then consistent with the fact that when the Judge asked her whether she [Mrs S] had just said “I was answering the phone” she answered “no” and when the Judge replied, “you didn’t say that” her response was “Nah, she did”. In other words, it was the respondent who had said “I was answering the phone”. When the cross-examination continued Mrs S gave clear evidence that the incident had happened when the appellant was at work.
[31] I am inclined to think that the more likely meanings she intended to convey were those on which I have conjectured above. Similarly, with respect to the questions asked by the Judge at the end of her evidence when he picked up her evidence that she had seen “it happen” the Judge regarded her as having confirmed that she had seen the respondent sustain the injury. It all depends what she understood by the question “you saw it happen”. Possibly what she saw was the result of the injury and the respondent telling her about it. The Judge asked her why the respondent would need to tell her about it (as Mrs S had asserted in her affidavit) when she had actually seen it happen. Mrs S responds by saying simply, “yeah”. This was either a non-responsive reply, reflecting a lack of understanding as to what the Judge meant, or possibly Mrs S was agreeing that if she had been outside and seen it happen, then indeed, the respondent would not have needed to have told her about it. That would confirm her evidence that she had been told about the incident and seen its outcome rather than actually seeing it happen.
[32] Rule 20.16 of the High Court Rules is generally resorted to when it is sought to produce evidence of matters that have arisen after the date of the decision appealed against which may be relevant to the determination of the appeal. However, the existence of evidence about such matters is but an example of circumstances amounting to a “special reason” which follows the statement of the general proposition at the outset of the Rule that “the Court may grant leave if there are special reasons for hearing the evidence”. I consider that there are such reasons in this case with respect to the evidence of Mrs S. Consequently, I will grant the application insofar as it relates to the evidence of Mrs S.
Other issues
[33] I can deal more briefly with the other issues raised by the appellant’s application. Essentially, the appellant seeks at the hearing of the appeal to rely on another affidavit of his own and affidavits from three other persons whom I will call AS, SSV and HKV. In each case, the proposed evidence could have been given at the hearing in the Family Court. AS would refer to an incident between the parties
that he observed at a supermarket, which the Judge referred to in his judgment as “an ugly incident”.
[34] SSV’s evidence would relate to Punjabi culture and the rituals of a Sikh marriage. Judge Brown referred to the difficulty of fact-finding when the parties were part of a culture different from the Court’s. HKV’s proposed evidence relates to the issue of the respondent’s leg injury; it would confirm that she had told other persons that she had scraped her leg on the BBQ. The further evidence that SS himself proposes to give at the hearing of the appeal would focus on alleged difficulties that the respondent is having concerning her immigration status. The evidence that SS could give is said to relate directly to her credibility.
[35] I do not consider that there is any basis upon which any of this further evidence should be adduced for the purposes of the appeal. All of it was available to be called before the Family Court and essentially SS now is simply attempting to bolster his case with respect to issues mentioned in the judgment. I do not consider that there is any “special reason” within the contemplation of r 20.16(3) which should lead the Court to grant leave for the proposed evidence to be called.
[36] The application also sought that the respondent produce immigration notes and copies of all information related to her immigration applications under a particular policy that relates to victims of domestic violence. It is said that the material will help to found an argument that she came to New Zealand with a view to taking advantage of the policy, and that the marriage was a sham. I decline to make the order sought. It seems to me too late in the day to be pursuing a collateral issue of that kind, which could only relate to the respondent’s credibility.
[37] Finally, the appellant seeks that the respondent be ordered to produce her medical records. The appellant considers that they too would be relevant to her credibility. Once again, if there was anything in that issue, it should have been attended to in time for the hearing in the Family Court.
Result
[38] The application is granted in part. It is ordered that the appellant may adduce further evidence on the appeal, namely the affidavit of Mrs S sworn on 25 June
2010. The application is otherwise dismissed.
[39] The issue of whether leave should be granted to bring the appeal out of time has yet to be dealt with, as recorded at [3] above.
[40] I now direct that the Registrar set this matter down for further mention in the next available Chamber’s List. The parties will be expected then to advise the Court whether leave to bring the appeal out of time is still opposed. Whether or not that is the case, the parties should confer and file memoranda, or if possible a joint memorandum, proposing a timetable for the further steps necessary to bring the matter to a conclusion.
[41] The appellant has succeeded in part of its application only. In the circumstances the appropriate course is to reserve questions of costs and direct that costs on this application should be costs of the party who succeeds on the substantive appeal. I make an order accordingly.
0
0
0