VP v RH
[2015] NZHC 260
•24 February 2015
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-003220 [2015] NZHC 260
UNDER The Care of Children Act 2004 IN THE MATTER
of an interlocutory application for leave to appeal against a decision of the North Shore Family Court
BETWEEN
V P Appellant
AND
R H Respondent
Hearing: 17 February 2015 Counsel:
D Holbrook and S Medemblik for appellant
S Cummings for respondent
E Parsons (as agent for Ms C Armstrong) for childJudgment:
24 February 2015
JUDGMENT OF KATZ J [Application to adduce fresh evidence on appeal]
This judgment was delivered by me on 24 February 2015 at 3:30 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Holbrook Law, Auckland
Snedden & Associates, Auckland
Counsel: S Cummings, Surrey Chambers, Auckland
C Armstrong, North Shore Legal Chambers, Auckland
P v H [2015] NZHC 260 [24 February 2015]
Introduction
[1] Ms P and Mr H are the parents of a young daughter. Ms P is the primary caregiver of the child, who has recently turned six. Ms P applied to the Family Court at the North Shore to relocate the child with her to Queensland, Australia.
[2] In a judgment delivered on 27 November 2014, Judge Burns declined Ms P’s application. Ms P has filed an appeal against that decision. She seeks to adduce fresh evidence in support of her appeal, pursuant to r 20.16 of the High Court Rules. The new evidence primarily (but not exclusively) relates to the reactions of Ms P and the child to the Judge’s decision. For example, it is alleged that the child has manifested some concerning behaviours that are attributable to Ms P and the child not being able to move to Australia.
[3] Mr H opposes Ms P’s application to adduce fresh evidence on appeal.
Legal principles
[4] Rule 20.16 of the High Court Rules provides that:
20.16 Further evidence
(1) Without leave, a party to an appeal may adduce further evidence on a question of fact if the evidence is necessary to determine an interlocutory application that relates to the appeal.
(2) In all other cases, a party to an appeal may adduce further evidence only with the leave of the court.
(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 and that are or may be relevant to the determination of the appeal.
(4) Further evidence under this rule must be given by affidavit, unless the court otherwise directs.
[5] An appeal will generally proceed on the evidence that was before the decision-maker at the time of his or her decision. 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.
[6] Leave is required to adduce further evidence on appeal. As set out in r
20.16(3), such leave may only be granted 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. This is sometimes referred to as “updating” evidence. Not all updating evidence will be admissible, however. It must still meet a materiality threshold.
[7] In exercising its discretion as to whether to grant leave to file new evidence on appeal, the Court will generally have regard to the following factors:1
(a) Whether the evidence could have been obtained with reasonable diligence for use at the trial (this requirement will be satisfied where the evidence is updating evidence).
(b) Whether the evidence appears to be cogent and credible.
(c) Whether the evidence would have had an important influence on the outcome of the case (in other words, whether the evidence is material).
(d)Whether admitting the evidence would require further evidence from other parties and cross-examination.
[8] These matters are not exhaustive considerations, although they have been widely recognised as important considerations when an application is made to adduce further evidence on appeal. The over-arching consideration, however, will
always be the importance of doing justice in the particular case.
1 H v H HC Auckland CIV-2006-404-005799, 2 March 2007 at [18]; Cornwall Park Trust Board
(Inc) v Chen HC Auckland HC55/98, 11 June 1998 at 4; Belling v Belling (1995) 8 PRNZ 523 at
525; Cromwell Corporation Ltd v Sofrana Immobilier NZ Ltd (1991) 5 PRNZ 180 at 182 (CA);
Sulco Ltd v E S Redit and Co Ltd [1959] NZLR 45 at 72 (CA).
The proposed new evidence
[9] Ms P’s affidavit canvasses the following areas:
(a) The settling in of the new parenting arrangements – in particular, there appears to have been some delay in implementing the Judge’s decision that the child could spend increased time with her father and his family.
(b)Communications between the parties following delivery of the judgment, some of which was said to be abusive in tone.
(c) Allegations that Mr H and his mother do not appear to be properly communicating with each other in relation to access arrangements (which also involve Mr H’s mother) or the child’s wellbeing.
(d)Allegations that the child (who was five at the time the decision was released, but has recently turned six) has starting demonstrating behaviours of concern, since she was told of the outcome of the decision.
(e) Allegations that the child is now saying that she does not want to see her father and is being verbally and physically aggressive to him.
(f) The impact on Ms P of the decision that she could not move with the child to Australia.
[10] The affidavit also includes hearsay evidence by way of statements from staff at the child’s school, which are annexed to the affidavit. Some of these people also apparently provided statements in support of Ms P in the Family Court proceedings.
Discussion
[11] I am satisfied that most or all of the matters traversed in Ms P’s affidavit are “fresh” in that they could not have been put in evidence before the District Court Judge. That is because they primarily relate to the alleged reactions of Ms P and the
child to the Judge’s decision. The key issue raised by Ms P’s application is accordingly whether the proposed evidence is material. In other words, would it be likely to have an important influence on the outcome of the appeal?
[12] In my view Ms P’s affidavit would be unlikely to materially assist the Court in determining whether the Judge erred in concluding that it was in the child’s best interests to remain in New Zealand, rather than relocate to Australia.
[13] I do not doubt that the Judge’s decision was deeply disappointing for Ms P and caused her considerable upset and anxiety. Relocation decisions are some of the most difficult decisions that Family Court Judges are called upon to make, given that there is no room for compromise. One party wins, the other party loses. The unsuccessful party will often be deeply distressed and bitterly disappointed, as was clearly the case here. In this case the child (who was only five when the decision was released) may well have picked up on her mother’s distress and reflected that, to some extent, in her own behaviour in the period following release of the judgment. None of this, however, is likely to be material to the outcome of the appeal.
[14] A person’s reaction to a Family Court decision would need to be fairly exceptional before it could constitute fresh evidence that would be likely to significantly influence the outcome of an appeal. Rather, the appropriate course would usually be for an unsuccessful party to obtain whatever support or counselling is necessary to enable them to work through any disappointment and distress and, more importantly, ensure that any emotional impact on the child is minimised.
[15] I further note that the evidence regarding the immediate reactions of Ms P and the child to Judge Burns’ decision is likely to be significantly out of date by the time of any adjourned appeal hearing. Similarly, evidence that there have been some difficulties transitioning to the new access arrangements is also likely to become out of date fairly quickly. This type of evidence is also not likely to have a material impact on the outcome of the appeal.
[16] In Telecom Corporation of New Zealand Ltd v Commerce Commission the Court disapproved of any notion that an appeal should be regarded as a new trial, with the previous hearing acting as a “dummy run”.2 Allowing in the proposed new evidence in this case would risk cutting across that principle. It is likely that Ms P would have to file several affidavits, not just one, as her current affidavit gives inadmissible hearsay evidence of what others have said about the child’s behaviour. Those witnesses would need to give evidence on oath themselves, and be available for cross-examination.
[17] Mr H and his family would, of course, have to be given the opportunity to respond to any new evidence. Ms P and her deponents would then need to be given a right of reply. It is likely that an updated psychologists’ report would also be required, to provide an independent expert view of the various matters covered in the new evidence. I am advised by counsel for the child that provision of an updated report would likely take eight to ten weeks.
[18] Most or all of the deponents would need to be available for cross- examination at the appeal hearing, given the conflicts in evidence and credibility issues that are almost certain to arise. As a result, the hearing could well take several days, rather than the one day currently allocated. It would have to be adjourned for three or four months from the current hearing date of 11 March 2015. All of this would involve considerable cost and delay. Such delay would not, in my view, be in the child’s best interests. Section 4(2)(a)(i) of the Care of Children Act requires the Court to take account of the principle that decisions affecting the child should be made and implemented within a time frame that is appropriate to the child’s sense of time.
[19] I have not overlooked that, as stated by Priestley J in Coates v Bowden,3 in appeals involving children appellate courts will adopt a fairly liberal approach to updating evidence. That is, of course, consistent with the requirement in s 4 of the Care of Children Act 2004 that the welfare and best interests of the child are
paramount. The relevant evidence must, however, be material, in the sense of being
2 Telecom Corporation of New Zealand Ltd v Commerce Commission [1991] 2 NZLR 557 (CA), at 3.
3 Coates v Bowden HC Auckland CIV-2006-404-7028, 12 December 2006, at [22].
likely to have an important influence on the outcome of the appeal. The proposed evidence in this case does not, in my view, meet that threshold.
[20] Further, even if the new evidence did meet the materiality threshold (contrary to my view) the more appropriate course would probably be for Ms P to seek leave to re-open the relocation issue in the Family Court under s 139A of the Care of Children Act. She would be entitled to do so if she could establish that, since Judge Burns’ decision was delivered, there has been a material change in circumstances. That is essentially what Ms P’s new evidence is seeking to establish. If the new evidence is indeed material (contrary to my view), the Family Court would be the more appropriate forum for any extensive re-litigation of the relocation issue rather than this Court, in its appellate jurisdiction.
[21] Obviously, the situation would be different if the proposed updating evidence was relatively narrow in scope, or not particularly controversial. That is not, however, the case. The evidence is wide in scope, and likely to be deeply contentious.
Result
[22] The application for leave to adduce fresh evidence on appeal is dismissed.
[23] Counsel for the appellant is to advise the Registrar forthwith of the current status of the appellant’s legal aid application. Costs are reserved pending the outcome of that application. I note my preliminary view, however, that the
respondent would normally be entitled to costs on a category 2B basis.
Katz J
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