VP v RH - [2015] NZHC 260

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 child

Judgment:

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…

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 VP v RH

Details

AGLC: VP v RH [2015] NZHC 260
Case: [2015] NZHC 260
Decision Date: 24 February 2015

CaseChat Overview and Summary

Ms P, the primary caregiver of a young child, sought to appeal a Family Court decision declining her application to relocate the child to Australia. Ms P sought leave to adduce fresh evidence in support of her appeal, primarily concerning the child's and her own reactions to the decision. Mr H opposed the application. The court had to determine whether the fresh evidence was material and if there were special reasons to admit it. The court found that the evidence, although fresh, was unlikely to materially assist in determining whether the relocation decision was erroneous. The court emphasised the importance of doing justice in the case and considered the potential delay and costs associated with the fresh evidence. The application for leave to adduce fresh evidence on appeal was dismissed.

The court noted that an appeal generally proceeds on the evidence that was before the decision-maker at the time of their decision. Leave to adduce further evidence on appeal is only granted if there are special reasons for hearing the evidence, such as if it relates to matters that have arisen after the date of the decision appealed against and is or may be relevant to the determination of the appeal. In exercising its discretion, the court considered factors such as whether the evidence could have been obtained with reasonable diligence, whether it appears cogent and credible, whether it would have an important influence on the outcome of the case, and whether admitting the evidence would require further evidence from other parties and cross-examination.

The court found that the proposed evidence, which primarily concerned the reactions of Ms P and the child to the Judge's decision, was 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. The court further noted that such evidence would likely be significantly out of date by the time of any adjourned appeal hearing, and that it would involve considerable cost and delay. The court concluded that the fresh evidence did not meet the materiality threshold and was unlikely to have an important influence on the outcome of the appeal.

Orders