KEB V GCB HC AK CIV-2009-404-3950 [2009] NZHC 1119 (25 August 2009)

   ANY PUBLICATION OF A REPORT OF THESE PROCEEDINGS MUST
     COMPLY WITH S 139 OF THE CARE OF CHILDREN ACT 2004


IN THE HIGH COURT
OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                            CIV-2009-404-3950
 
                                                                          CIV-2009-404-2373

                      UNDER        
                 the Care of Children Act 2004

                      IN THE MATTER OF               an appeal against a decision
of the Family
                                                     Court at Papakura

                      BETWEEN             
          KEB
                                                     Appellant

                      AND                         
  GCB
                                                     Respondent


Hearing:              25 August 2009

Appearances: P Webb
for Applicant/Appellant
             S Jefferson for Respondent
             D Tagelagi for Child

Judgment:             25 August
2009 at 4.30 p.m.


                           JUDGMENT OF VENNING J
                 ON APPLICATION TO ADDUCE FURTHER EVIDENCE




This judgment was delivered by me on 25 August 2009 at 4.30 pm, pursuant to Rule 11.5 of the High
Court Rules.


Registrar/Deputy
Registrar

Date...............




Solicitors:           Webb Morice, Pukekohe
                      Family Law Results, Auckland
Copy to:              P Webb, Auckland
                      S Jefferson, Auckland
                      Tagelagi & Attfield, Manukau




KEB V GCB HC AK CIV-2009-404-3950 25 August 2009

Introduction


[1]    In a decision delivered on 10 March 2009 Judge Hikaka
approved the
respondent's application that contact with his daughter T should extend to overnight
contact every fortnight and for
seven days during the holiday period. The appellant
appeals against that decision.


[2]    The appellant seeks leave to adduce further
evidence at the appeal hearing.
That application is opposed by counsel for the respondent. Counsel for the child, Ms
Tagelagi, does
not support it either.


Background


[3]    T is now 11 years old. The parties are her parents. They are separated. In
March 2008
a consent arrangement was put in place to provide for the respondent to
have contact with T. Since May 2008 that contact has been
unsupervised. Earlier
this year the respondent sought overnight contact and holiday contact to enable him
to spend more time with
T. The appellant opposed the application. After a hearing
on the written submissions of counsel and the evidence filed by way of
affidavit
Judge Hikaka made the orders permitting overnight contact every fortnight and for
seven days during the holiday period.


[4]    The appellant seeks leave to adduce the evidence by way of affidavit of
another child of the respondent, C. C is now 22
years old. In her affidavit she says
that from the time she was about three or four until she was about 11 the respondent
sexually
abused her. In an affidavit prepared for this application she describes in
some detail the incidents of abuse. She also describes
an incident between the
respondent and T that occurred seven years ago, when C was 15. T would have been
four at the time. C says
she overheard the respondent and T playing, initially in the
spa and later, in the bedroom. She describes going to the bedroom door
and seeing
her sister, naked, jumping around on the bed looking like she was having a lot of fun.
She does not say if the respondent
was clothed or not, but does say they were on the

bed, not in it. C described the respondent rolling over and away, and, in her
view,
pretending to be asleep. She considers he must have been feeling guilty about
something.


The principles to apply


[5]  
 Rule 20.16 applies to an application to adduce further evidence. It reads:

       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.

[6]    Rule 20.16(3) is applicable.
The matters that C refers to in her affidavit, at
least as far as her allegation the respondent abused her go, were known to the
appellant at the time of the hearing before Judge Hikaka. The appellant referred to
the allegation in her affidavit. The Judge recorded
in his judgment:

       [3]     The concern that I need to focus on today, however, is with respect
       to T. The reason for
that is on account of an older daughter of [the
       applicant] C. C, now 21, made allegations when she was about 15 that from
       the ages of 6 to 11 she was sexually abused. That led to [the respondent]
       being committed for trial, a trial being
conducted, a video interview from C
       being played, and C being cross-examined. At the end of that process [the
       respondent]
was found not guilty and thereafter, I expect, acquitted.

[7]    Notwithstanding the outcome of the criminal proceedings the appellant
still
considers that the abuse occurred. C stands by her allegations of abuse in her
affidavit. The short point is, however, that
C's evidence about the alleged abuse was
available to the applicant and could have been used by her for the hearing before
Judge
Hikaka in the Family Court. The appellant was aware of the evidence C could

give. C is obviously prepared to co-operate with her
mother. She has confirmed in
her affidavit that she sent an email, from which the affidavit had been prepared, to
her mother in March
2009 and that she understood it had been passed on to the
lawyer at the time. Whether the email was available before the hearing
on 10 March
2009 or not, it is clear enough that the evidence does not relate to matters that have
arisen after the date of the decision
and it could with reasonable diligence by the
applicant, have been put before the Judge at the hearing in the Family Court:
Telecom
Corporation of New Zealand Ltd v Commerce Commission  [1991] 2 NZLR
557. The applicant has made no attempt to explain why the evidence was not
adduced at the earlier hearing. This is not a case of updating
evidence where the
Court may take a more liberal view. If the matter rested on the application of r 20.16
C's affidavit would clearly
not have been admissible at the appeal.


[8]    However, as this is a case involving contact with a child it is appropriate that
the Court take a broader approach. In considering where the overall interests of
justice lie on such an application the court should
consider the welfare and best
interests of the child concerned that may potentially be affected by the appeal: WH v
Chief Executive,
Ministry of Social Development  (2008) NZFLR 1069.


[9]    While Mr Webb conceded that the evidence was available at the time of the
original hearing he submitted that it was in the
best interests of the child that it be
adduced as the evidence was relevant to determining whether it was safe for the child
to have
overnight contact with the respondent. In light of the seriousness of the
allegations and because the evidence was material to the
safety of the child he
submitted the evidence should be adduced.


[10]   In considering the welfare and best interests of the child
generally it is
necessary to consider the matter in context. The evidence must be relevant. The
evidence would support a submission
that if the respondent has unsupervised contact
with T, he may abuse her. But as Mr Jefferson submitted, this is not a case of a
fresh
application for unsupervised contact between the respondent and T. There has been
such unsupervised contact for a number of
months without any difficulty and
without any concerns being raised. When considering the suggestion the respondent
may abuse T,
it is relevant that since at least May 2008 the respondent has had

unsupervised contact with her from 10.00 a.m. in the morning
until 7.00 p.m. in the
evening. Neither T nor counsel for T has raised any issues or concerns arising out of
that unsupervised contact.
Further, as noted, the appellant did not oppose that
contact. While I acknowledge the point Mr Webb makes that overnight contact
is
different in that it provides further opportunity for abuse, the Court is aware and
counsel will be aware that in a number of
cases abuse has occurred during the day, in
houses with other parties present. It is relevant that despite the contact over that
extended recent period no concerns about abuse have been raised.


[11]      To allow the application would inevitably lead to the
need for the respondent
to reply to the allegations by C. That would involve a full hearing with cross-
examination of both C and
the respondent. There would essentially be a rerunning
of the allegations and counter-allegations made in the criminal trial. As
Ms Tagelagi
also noted, if the evidence was allowed, the Court would need to consider whether
psychologists' reports should be obtained
and whether the transcript of the criminal
jury trial should also be made available and form part of the evidence before the
appeal.


[12]      It would be unsatisfactory for the appeal to proceed on that basis. It would
tend to divert the attention of the Court
from looking at the matter overall, to
focusing on this particular issue. It is almost inevitable that if the application was
allowed,
then a Judge faced with the prospect of a full hearing on this issue in this
Court would direct that the matter be returned to the
District Court for a rehearing.
The process of appeal would effectively be subverted. The matter would have to be
reheard. It would
not be in the interests of the child, T to have the matter delayed in
that way: s 5(f) Children Young Persons and Their Families
Act 1989.


[13]      In other cases where evidence has been allowed, adopting a liberal approach,
there has not been a need for
cross-examination: Coates v Bowden unreported HC
AK CIV 2006-404-7028 12 December 2006 Priestley J.


[14]      In reply Mr Webb
sought to emphasise that apart from C's allegations of
abuse on her, she also gave evidence about a specific incident involving T.
I have
considered whether the evidence of the incident C described involving T should be

allowed (as opposed to C's evidence about
the allegations she makes against the
respondent as they relate to her personally). But I have decided it should not be.
The evidence
is equivocal. It could not have a material effect on the appeal. Even
on C's evidence she did not actually observe any indecent or
improper act. Her
concern about the incident essentially arises from her impression or interpretation of
what she observed. But the
incident she described is equally consistent with an
innocent explanation. C's evidence is not that she witnessed an incident of the
respondent abusing T. If there was direct evidence of abuse
then it may have tipped
the balance in favour of admission. But C's evidence does not go that far.


[15]     In conclusion, C's
general allegations of abuse were known to the Family
Court Judge when he made his decision. It is not new evidence. The specific
incident involving T is entirely reliant on C's interpretation of the incident. It is not
evidence of abuse of T by the respondent.
Further the incident is said to have
occurred some seven years ago but there has been nothing in the behaviour of T
since then, including
during a long period of unsupervised contact with the
respondent, to have caused concern to those around her or to counsel for T.


Result


[16]     In the particular circumstances of this case the applicant fails to satisfy the
Court that this is an appropriate
case for leave to be granted. The application is
dismissed.


[17]     Costs are reserved.




                                 
             __________________________
                                               Venning J