Hagley v Hagley
[2023] NZHC 1950
•25 July 2023
NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018, 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-2022-409-264
[2023] NZHC 1950
BETWEEN MR HAGLEY
Appellant
AND
MS HAGLEY
Respondent
Hearing: 29 November 2022 Appearances:
S H Marsden and E A Orr-McFaull for Appellant S J Bee for Respondent
S N van Bohemen – Counsel to Assist
Judgment:
25 July 2023
JUDGMENT OF EATON J
[Anonymised]
This judgment was delivered by me on 25 July 2023 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
[1] On 1 June 2022, Judge McKenzie granted an application made by Mr Hagley to discharge a protection order made in favour of Ms Hagley. Ms Hagley appeals that decision.
[2] The appellant challenges the approach adopted by the Judge and raises a jurisdictional challenge to the appointment of a lawyer for the child.
HAGLEY v HAGLEY [2023] NZHC 1950 [25 July 2023]
The background
[3] The parties began a relationship over 25 years ago. After marrying in 2003, they had a daughter in January of 2005 (M). Twin daughters followed in September 2006 (C and P).
[4] Following an incident that gave rise to the arrest of Mr Hagley on 1 August 2020, the couple separated. On 7 August 2020, a temporary protection order was made against Mr Hagley in favour of Ms Hagley. A final protection order was made unopposed on 16 February 2021.
[5] On 16 June 2021, Mr Hagley was discharged without conviction, having pleaded guilty to a representative charge of assaulting Ms Hagley. On 27 July 2021, he applied to discharge the protection order.
[6] That application to discharge the order under the Family Violence Act 2018 (the Act) was heard over two days in May 2022. Prior to that hearing, a lawyer had been appointed to represent the three children. Immediately prior to the hearing, the Judge interviewed all three children, then aged 17 years and 15 years (the twins).
[7] Although the Family Violence Act proceedings coincided with the parties’ separation and concurrent applications for occupation and ancillary furniture orders, at no stage did either party initiate Care of Children 2004 (COCA) proceedings.
[8] Judge McKenzie discharged the protection order and, by consent, made a parenting order on an oral application made on behalf of Mr Hagley.
The decision under appeal
[9] At the commencement of the decision, the Judge referred to her interviews of the three daughters. The Judge said she was most impressed with all three girls, who she described as bright, intelligent and articulate. The Judge observed M was about to complete her secondary schooling and planned to attend tertiary education. The Judge described M as being aligned with her mother. The Judge noted C had told her the protection order made her anxiety and depression 100 times worse and that P made
it clear she disliked the protection order. The Judge considered the twins felt safe with their father. The Judge described the twins as wanting a “week-about” care arrangement.
[10] At the end of the decision, under the heading, “Children’s views”, the Judge recorded her very clear view the litigation needed to end, that the girls had had enough and were too involved in protecting their parents. The Judge described this factor as weighing heavily on her, particularly having regard to the mental health issues raised by C. The Judge found the children’s views were uninfluenced by either parent and were well thought out.
[11] The decision records that following the interviews of the children, the Judge invited the parents to reconsider their positions and to “utilise the time that was available and the experienced personnel available to them to better their children’s interests”.1
[12] The Judge then canvassed some of the incidents making up the history of family violence during the relationship, noting the respondent’s response:
[12] In 2002 the parties were in the first stages of the relationship and had begun living together in London. Whilst under the influence of alcohol the applicant assaulted the respondent resulting in her sustaining a black eye, fat lip and grazes. The applicant acknowledged the incident, reported to being totally ashamed of it and expressed remorse that it had occurred. The parties then married on 8 March 2003.
[13] In 2007 the respondent claimed that during an incident she sustained a further black eye. The exact details, dates, times, and circumstances have not been advanced, and the applicant denies this has occurred.
[14] In 2010 the respondent claims that she was bitten by the applicant. The applicant acknowledges the occurrence but describes the event differently. He describes that they were both on the sofa, that the respondent abused him and during that physicality her arm collected with his teeth. He says that he did not intentionally bite her.
[15] He acknowledges that sometime between 2012 and 2014 he kicked in a bedroom door, further acknowledging that it was unacceptable behaviour for which he was not proud.
1 Hagley v Hagley [2022] NZFC 5028 at [10]. (Case name anonymised.)
[16] In February 2007 the parties separated for a period of approximately nine months following an incident described as the Night Noodle Market incident.
[17] The applicant had been at work and with friends during the day and had been drinking. The parties decided to attend the market and the respondent claims that the applicant became aggressive and ripped her handbag from her, yelling at her, taking the bag and forcing her to the ground.
[18] The applicant acknowledges a part to play in this. He acknowledges that he did grab the bag and that the strap broke. He denies touching the respondent in any manner. He denies she fell to the ground.
[19] It is clear even from the applicant’s own evidence that the incident must have been terrifying for the respondent and the physicality unnecessary, even if there was no touching of her body by the applicant.
[20] Again, however, the applicant was intoxicated and when challenged about this by Ms Marsden he acknowledged that at this time he had been using alcohol as a means to numb his pain. Following this incident it seems that the parties were able to share the care of their young children and there were no limits imposed on the applicant’s care of them.
[21] On 25 November 2017, the applicant got into a fight with a friend. The applicant acknowledged this explaining that he was highly intoxicated and felt that the incident related to the unwelcome attentions that he had been receiving from the friend’s wife. Punches were exchanged, both men were drunk, both apologised to all concerned and have not been friends since.
[22] On 3 May 2019 an event occurred with which the applicant was ultimately charged. I will come back to the facts relating to these charges shortly, but this incident was a separate matter that he acknowledged.
[23] He came home from work intoxicated, there was an argument between them and he admits kicking a yoga ball. The respondent’s view of events as outlined in the summary of facts is quite different, in that she claims that he picked up the ball and charged at her with the ball raised. Either way the violence was unacceptable and again the applicant was intoxicated.
[24] In February 2020, the applicant was intoxicated, an argument ensued and he ultimately ripped her underwear and kicked her out of bed.
[25] On 1 August 2020, matters came to a head. The applicant was heavily intoxicated by his own admission, having consumed 17 vodkas during the course of the day. There was a physical altercation between the parties such that initially the respondent called her father-in-law and he in turn phoned the police. I do not need to determine the facts of this incident.
[26] The applicant was charged with assault on police and assault on a person in a family relationship. By the time the matter came before Judge Lynch on 16 June 2021, the applicant was able to persuade the Court that he was a changed man.
[27] The charge of assault on a person in a family relationship was a representative charge including some of the incidents I have referred to and
some matters that the applicant simply does not accept. The respondent was not consulted, she says, in regard to this.
[28] At the time of sentence Judge Lynch recorded his views that the offending was at the lower end of the scale after acknowledging, however, that he was not sentencing the applicant other than that were before him. He noted the applicant’s abstinence from drinking, his problematic relationship with alcohol and the steps that he had taken to get on with the counselling. He was granted a s 106 application.
[13]The Judge then considered s 110(2) of the Act.2
[14] The Judge observed that, at the time of the judgment, 22 months had passed since the order was made.3
[15] In considering the behaviour which led to the order being made,4 the Judge referred to her summary of the standout incidents of family violence. The Judge found that where there was a conflict in the evidence, she preferred Ms Hagley’s accounts given Mr Hagley’s problematic relationship with alcohol. The Judge found that while the physical impact on the appellant was moderate, it was nonetheless traumatising and would take considerable time to heal. The Judge described the respondent’s behaviour as “completely unacceptable”,5 observing Mr Hagley was rightfully remorseful.
[16] In considering the respondent’s acknowledgement of past behaviour,6 the Judge accepted Mr Hagley had acknowledged occasions his behaviour had been unacceptable and his responsibility in incidents where his judgement had lapsed.
[17] As regards the respondent engaging in and completing counselling,7 the Judge relied on the decision of Lynch DCJ in discharging Mr Hagley without conviction. The Judge observed that Judge Lynch had described the respondent as having grasped the nettle and got on with his counselling, having completed a mandated stopping violence course, self-referred to and attended counselling, and completed AA to step
2 Family Violence Act 2018, s 110(2).
3 Section 110(2)(a).
4 Section 110(2)(b).
5 At [29].
6 Section 110(2)(c).
7 Section 110(2)(d).
three. The Judge was satisfied Mr Hagley had done a great deal of personal work, observing that the question remains whether that translates to actual change.
[18] The Judge found there was no evidence of safety concerns identified by an assessor,8 but noted Mr Hagley was unwilling to place before the Court any reports from his clinical psychologist, citing privacy concerns. The Judge concluded she could not place great weight on the respondent’s self-reporting of the findings of the psychologist.
[19] The Judge referred to alleged breaches of either the protection order or bail.9 Mr Hagley was spoken to by police in February 2022 concerning a breach of the order by emailing Ms Hagley. No formal breach was entered. The respondent had consumed alcohol in breach of his bail conditions early in his remand period. The Judge observed Mr Hagley was not charged with breaching bail. The Judge referred to Ms Hagley’s evidence of a “long list” of breaches she did not seek to be prosecuted but that she wished the Police to investigate.
[20] In considering breaches of the order, the Judge referred to but did not uphold the appellant’s claim of financial abuse said to arise as a consequence of an unresolved relationship property dispute.
[21] As regards the necessity for future contact,10 the Judge did not consider there needed to be continuing contact on matters of relationship property and child support but did express concern regarding communication affecting the children. The Judge found all three children felt the burden of their parents’ communications and that both parents had, to a degree, abdicated communication responsibilities which was to the children’s detriment. The Judge did not consider the children should have to seek permission to contact their father. The Judge noted the parties had reached agreement (parenting orders) to remove the need for ongoing contact concerning the children and that they would use the Our Family Wizard app.
8 Section 110(2)(e).
9 Section 110(2)(f).
10 Section 110(2)(g).
[22] As to the risk of future violence,11 the Judge observed there had been no incidents of family violence since the parties separated. While this was in part attributed to the protection order, the Judge referred to occasions where both parties had attended school or sporting events without issue.
[23] The Judge then considered the views of the protected person.12 First, the Judge referred to the views of the three children, in particular, those expressed by C. The Judge acknowledged the appellant was strongly opposed to the order being discharged. The Judge described the appellant as resenting the respondent, blaming him for the position she was now in, and hating him intensely. The Judge referred to Ms Hagley being anxious about the protection order being discharged and her view that the Police had let her down in not holding Mr Hagley to account for his breaches.
[24] The Judge observed that while Ms Hagley had contacted the Women’s Refuge and Family Harm, she had not undertaken safety programmes with those agencies. The Judge found it was regrettable Ms Hagley had not fully engaged with any programme.
[25] The Judge found Ms Hagley was wrong in thinking the protection order would help with enforcing care arrangements for the girls. The Judge was concerned about the appellant’s view that the girls would adjust if the order remained. Focussing on the twins’ distress, the Judge concluded they would not “get used to” a continuation of the order and criticised a lack of understanding regarding the depth of damage that has been done to the children by virtue of the parties’ conduct.
[26] While the Judge recognised Ms Hagley believed her anxiety would increase if the order was discharged, the Judge perceived a “real sense of strength” in the appellant.13 She considered Ms Hagley was capable of asserting herself, as she did in the hearing, and of challenging the respondent and calling the Police if needed. The Judge expressed confidence that Ms Hagley would be able to seek a second protection order if any family violence was repeated.
11 Section 110(2)(h).
12 Section 110(2)(j).
13 At [42].
[27] The Judge finally observed that at the conclusion of the evidence the parties were able to agree to a shared care arrangement and made a parenting order. The Judge said:14
I want to remove from their lives [the children] at least one aspect that is causing them distress. If the protection order is removed there is only one impediment to joint and collaborative parenting and that is the parents will.
[28]The protection order was discharged.
Approach on appeal
[29] The appeal proceeds under s 177 of the Act. It is a general appeal that proceeds by way of rehearing.15 The principles noted in Austin, Nichols & Co Inc v Stichting Lodestar apply.16 The appellant bears the onus of satisfying this Court that it should differ from the earlier decision and identify error in that decision, but this Court must also reach its own conclusion on the merits of the case.
Legal Principles
[30] The Court’s assessment is appropriately guided by the purposes and principles of the Act.
[31]Section 3 provides:
(1)The purpose of this Act is to stop and prevent family violence by—
(a)recognising that family violence, in all its forms, is unacceptable; and
(b)stopping and preventing perpetrators from inflicting family violence; and
(c)keeping victims, including children, safe from family violence.
[32]Section 4 contains the relevant principles of the Act, including:
…
14 At [53].
15 Thomas v Kane [2021] NZHC 1211.
16 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
(a)family violence, in all its forms, is unacceptable:
(b)decision makers should, whenever appropriate, recognise that family violence is often behaviour that appears to be minor or trivial when viewed in isolation, but forms part of a pattern of behaviour that causes cumulative harm:
…
(d)decision makers should, whenever appropriate, recognise that children are particularly vulnerable to family violence, including seeing or hearing violence against others:
(e)decision makers should, whenever appropriate, recognise that children are at particular risk of lasting harm to their current and future well-being:
…
(g)decision makers should, whenever appropriate, recognise that early intervention helps to stop and prevent family violence:
(h)perpetrators of family violence should face effective responses to, and sanctions for, family violence:
…
(m) decision makers should consider the views of victims of family violence, and respect those views unless a good reason exists in the particular circumstances for not doing so (for example, because doing so would or may compromise victims’ safety);
…
[33] Section 9 defines family violence as occurring within an existing or prior family relationship, and including physical, sexual, or psychological abuse. In particular, it provides that:
(3)Violence against a person includes a pattern of behaviour (done, for example, to isolate from family members or friends) that is made up of a number of acts that are all or any of physical abuse, sexual abuse, and psychological abuse, and that may have 1 or both of the following features:
(a)it is coercive or controlling (because it is done against the person to coerce or control, or with the effect of coercing or controlling, the person):
(b)it causes the person, or may cause the person, cumulative harm.
[34] The Court is able to discharge a protection order under s 109 of the Act, which states that a discharge may only be ordered if doing so complies with s 110. Section 110 is as follows:
110 Test and criteria for discharging protection order
(1)The court must not discharge a protection order under section 109 unless satisfied that the order is no longer necessary for the protection of any protected person.
(2)In determining whether to discharge a protection order under section 109, the court must have regard to the following matters to the extent that they are relevant in the particular case:
(a)the length of the period since the order was made:
(b)the behaviour that led to the making of the order (including its nature, its seriousness, and how often violence occurred):
(c)whether, and if so how, the respondent acknowledges the respondent’s past behaviour that led to the making of the order:
(d)whether the respondent to the order complied with required attendance at or engagement with, and achieved objectives of, any assessment or programme or prescribed services:
(e)any relevant safety concerns that an assessor or a service provider has notified or advised under section 186 or 204:
(f)any family violence or breaches of the order since it was made:
(g)the necessity for contact and the likelihood (if the order is discharged) of future contact:
(h)the risk of future family violence:
(i)whether areas of concern that led to the order are no longer evident:
(j)any protected person’s ascertained views on the application (whether it is made by, or on behalf of, the applicant or the respondent).
(3)Subsection (2) does not limit the matters to which the court may have regard in determining whether to discharge a protection order under section 109.
[35] The leading authorities on protection orders are the Court of Appeal decisions in Surrey v Surrey17 and SN v MN.18 Both these decisions were made under the Domestic Violence Act 1995, which was repealed by the Act on 1 July 2019. Campbell J in Thomas v Kane considered an application to discharge a protection order under the Family Violence Act and approved the relevant principles as noted in the Family Court:19
(a)The assessment of necessity requires a broad-based assessment by the Court of the need for protection in the future, having regard to both the objects of the Act and the statutory factors set out in the Act, as well as any other relevant factors;
(b)The scheme of the Act envisages that the Court will assess the risk of domestic violence on the basis of past conduct, informed by the subjective views of the victim and any other relevant factors;
(c)The applicant’s perception and vulnerability may be persuasive factors in favour of granting an order but the overall picture must still be objectively considered;
(d)The fact that Parliament has mandated that the subjective views of an applicant regarding past violence have to be taken into account suggests that the purpose of a protection order may not only be to ensure that those who have been subjected to domestic violence in the past are safe in the future from the risk of domestic violence, but also that they feel safe from domestic violence;
(e)An evidential burden passes to the respondent to raise countervailing factors that weigh against the need to grant a protection order once an applicant has proved the existence of past violence and his or her reasonable subjective fear of future violence.
[36] The statutory provisions, as well as the applicable case law, demonstrate that the focal point for considering protection orders is properly the protection of victims of family violence.
Submissions
Appellant submissions
[37]Ms Marsden, for Ms Hagley, advances three primary grounds of appeal:
17 Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581.
18 SN v MN [2017] NZCA 289, [2017] 3 NZLR 448.
19 Thomas v Kane, above n 15, at [33].
(a)The Judge erred in treating allegations of family violence as if there had been no prior determination in respect of those allegations.
(b)The Judge erred in how she considered whether the protection order was necessary for the continued protection of the appellant.
(c)The Judge erred by predetermining the application.
[38] Ms Marsden also challenges the jurisdiction to appoint a lawyer for the children, although accepts the appointment in this case has not given rise to any unfairness to the appellant in the light of the interviews of the children undertaken by the Judge.
Prior determination
[39] Ms Marsden submits that an application to discharge a protection order cannot be used to relitigate issues already determined20 and that, where an original application has not been defended, the allegations therein are assumed to have a basis in truth.21 She contends the Judge did not give due weight to the prior determination represented by the making of the protection order and allowed Mr Hagley to offer fresh evidence on several family violence incidents.
[40] Further, Ms Marsden submits the Judge accepted the respondent’s minimisation of the incidents while not considering serious aspects of those events outlined in the evidence of the appellant.
[41] Ms Marsden gave examples including the Judge’s treatment of a February 2020 incident where the Judge summarised an incident as “the applicant was intoxicated, an argument ensued and he ultimately ripped her underwear and kicked her out of bed”.22 Ms Marsden submits the Judge failed to consider the appellant’s evidence that the respondent had ripped her underwear after she refused his demand for sex while he
20 RH v AH [2021] NZHC 957.
21 Citing W v W FC Porirua FAM-1998-091-217, 4 February 2005.
22 Hagley v Hagley, above n 1, at [24].
was intoxicated, had kicked her in the back forcing her onto the floor, and that she was made to sleep in the corner without blankets.
[42] Ms Marsden refers to the incident in 2007 in respect of which the Judge found Ms Hagley “claimed that…she sustained a further black eye”.23 Ms Marsden submits that not only did Mr Hagley not deny this incident prior to the protection order being made, but in his evidence at the hearing did not deny the incident, instead claiming he was “not totally familiar” with it.
[43] In relation to the 2010 allegation of biting, Ms Marsden takes issue with the Judge referring to Ms Hagley as claiming she was bitten. Ms Marsden says the appellant had produced a photo evidencing a bite mark. The Judge overlooked that the biting allegation, as with many others, had been determined by the making of the protection order.
Erroneous approach
[44] Ms Marsden says that at the very outset of the hearing, the Judge told the parties about C’s strong views supporting the discharge of the order and invited them to reconsider their positions. She contends the hearing was then conducted more along the lines of a parenting dispute under the COCA. This approach, it is submitted, is reflected in the comment made by the Judge that the protection order was an impediment to joint and collaborative parenting.
[45] Ms Marsden highlights that under s 110, the Court must not discharge a protection order unless satisfied that the order is no longer necessary for the protection of any protected person. The Court’s proper inquiry is to focus on the appellant’s need for protection rather than the wishes and best interests of two of the children. In elevating the views of the younger daughters, the Judge is said to have placed insufficient weight on compelling factors which support the protection order continuing.
23 At [13].
[46] Ms Marsden highlighted the failure of the Judge to refer at all to the admitted act of strangulation in about 2010.
[47] Ms Marsden submits the flawed approach adopted by the Judge gave rise to error in the consideration of the s 110(2) factors, including a failure to consider s 110(2)(i) which concerns whether areas of concern that led to the order are no longer evident. Ms Marsden submits this factor was critical in assessing whether a discharge was appropriate. She submits a key area of concern was the respondent’s drinking. He had abstained until his appearance before Judge Lynch but had since resumed drinking.
Pre-determination
[48] Ms Marsden refers to the “fair-minded lay observer” test as preferred by the Court of Appeal in Newton v Family Court at Auckland.24 Ms Marsden submits the invitation of the Judge to the parties to reconsider their position at the outset of the hearing establishes predetermination. Ms Marsden contends the Judge could only have been inviting the appellant to consent to the discharge application. The appellant did not take up that invitation and, it is submitted, the Judge then failed to have regard to the appellant’s evidence and minimised the seriousness of the family violence and its effects on the appellant and the children. This approach, Ms Marsden submits, reflects predetermination.
Jurisdiction to appoint lawyer for the children
[49] Ms Marsden acknowledges the Judge was entitled to ascertain the children’s views by way of judicial interview.25 Consequently, it is acknowledged that no unfairness arose from the decision to appoint counsel for the children. Nevertheless, Ms Marsden challenges, as a distinct ground of appeal, the jurisdiction for a Family Court judge to appoint a lawyer for child pursuant to s 166(c)(ii) of the Act in an application to discharge a protection order made in favour of a parent.
24 Newton v Family Court at Auckland [2022] NZCA 207, [2022] 3 NZLR 846 at [253]–[258].
25 Family Violence Act 2018, s 168.
[50] Ms Marsden observes that, in appointing a lawyer for child in the present case, the Judge did not specify the statutory authority for the appointment. She acknowledges s 166 permits the Court to appoint a lawyer to represent a child in a case where the child is the applicant or as otherwise specified in s 166(1)(c)(i), but, it is submitted those circumstances do not arise in the present case.
[51] Ms Marsden submits there is no principled rationale for the Court to appoint a lawyer for child when the Court, under s 168, can ascertain the child’s views on an application for a protection order via judicial interview. She submits that in most cases, protection orders will be made to protect not only the parent but the children and, consequently, the children’s interests will mirror those of the parent.
Respondent submissions
[52]Ms Bee, for Mr Hagley supports the decision of the Judge.
Prior determination/erroneous approach
[53] She submits the Judge did not treat the allegations as if there had not been a prior determination. Both old and new allegations were before the Court. Despite being entitled to make findings concerning the new allegations, the Judge did not make findings as to whether family violence had occurred. Ms Bee submits that was appropriate, given the respondent accepted there had been family violence. She submits it does not matter that the Judge did not canvas every incident of family violence. The Court is required to make a broad assessment of the relationship and the role family violence has played in it.
[54] Ms Bee argues that because family violence is not disputed, it is not necessary to labour over each incident, and the Court appropriately catalogued the “standout” occasions. Ms Bee observes the Judge acknowledged the credibility of Ms Hagley’s account and recognised her experiences as terrifying and traumatising.
[55] She submits a court can take a broad array of factors into account in assessing whether to discharge a protection order. These factors may include considerations usually addressed in proceedings under the COCA. She submits the Judge did not err
in the weight given to different criteria. The Judge was entitled to determine the criteria irrelevant in the s 100(2) analysis.26
[56] Ms Bee submits the Judge did not err in having regard to the children’s views. She observes this is a mandatory consideration under s 110(2)(j). She submits it was appropriate given the link between C’s mental health and the protection order. Ms Bee cites Dunn v Elliot as authority for considering the perception of teenage children who have been victims of family violence.27
[57] Ms Bee submits the Judge appropriately considered the appellant’s need for protection. The Judge expressly referred to the anxiety the appellant was experiencing as well as her strength and capacity to assert herself. Ms Bee submits the observation made by the Judge that the appellant had not engaged with therapeutic resources “demonstrates that the Court was undertaking an enquiry of the appellant’s needs for an order which was based on her own experiences without any therapeutic intervention”.
[58] She argues the Judge appropriately considered the breaches, the allegations of financial abuse, and turned her mind to possible psychological abuse. Similarly, Ms Bee submits the Court considered the respondent’s relationship with alcohol. She highlights Mr Hagley had acknowledged his past behaviour, improved his alcohol use, and had respected the appellant’s boundaries. Ms Bee submits the Judge did not err in the assessment of the s 110(2) considerations.
Predetermination
[59] Ms Bee rejects the submission the Judge pre-determined the application for a discharge. Ms Bee refers to the legal test for apparent bias and pre-determination. Ms Bee submits the Judge’s invitation to the parents to reconsider their positions was addressed to both parents and engaged the possibility of the respondent withdrawing his application or the appellant consenting to the order sought. She highlights the Judge accepted the appellant’s evidence regarding family violence and described the
26 GS v LM [2022] NZCA 305.
27 Dunn v Elliot [2020] NZHC 2872 at [74].
respondent’s behaviour as completely unacceptable. She submits the allegation of pre- determination or bias is without foundation.
Jurisdiction to appoint lawyer for the children
[60] Ms Bee’s submissions on the issue of appointing lawyer for child align with those advanced by Mr van Bohemen, who was appointed as counsel to assist. Both submit s 166(1)(c)(ii) allows for appointment of lawyer for child in proceedings relating to or arising out of a protection order or a direction made under the Family Violence Act on any such application.
[61] Mr van Bohemen argues this broader interpretation of the section is consistent with the Act’s purpose, New Zealand’s international law obligations, and the evolution of the practice concerning children’s participation in family law disputes.
[62] Citing the purposive approach to statutory interpretation, counsel notes the purposes of the Act to keep victims (including children) safe from violence, to recognise that children are at particular risk of lasting harm from family violence, and to consider the views of victims of family violence. He also raises the ability of a judge to interview children and the possibility of a child having a right to appeal under s 177(3) as a person prejudicially affected by decisions of the Family Court. Mr van Bohemen argues ensuring protection of and participation by children is a clear purpose of the Act. Counsel argues that, with the Family Violence Act, came an evolution in practice which provided a wider ambit for the appointment of lawyer for child.
[63] He also refers to the United Nations Convention on the Rights of the Child (UNCROC), which New Zealand ratified in 1993. It provides states should ensure the views of children are gathered in matters affecting them. The Act improved New Zealand’s adherence to the UNCROC, and, Mr van Bohemen submits, s 166(1)(c)(ii) should be interpreted consistently with New Zealand’s international obligations.
[64] Ms Bee’s submissions refer to s 27 of the New Zealand Bill of Rights Act 1990 (NZBORA), the right to justice. Ms Bee observes the order protects the three daughters of the parties and submits the children had rights to be heard in relation to an application that curtails their right to see their parents. Ms Bee submits that, if this
Court was to find s 166 does not provide jurisdiction for the appointment of lawyer for a child in a case of this nature, the position is inconsistent with the NZBORA and submits the Court ought to encourage Parliament to take remedial action.
[65] Ms Bee also raises possible pragmatic issues which arise if lawyer for child cannot be appointed under the section.
[66] Ms Bee submits that a Judge should not be required to meet with the children at their discretion without a legal representative. Further, she submits it would be contrary to policy that a party seeking the discharge of a protection order would need to ask their child to swear an affidavit and be a witness in the proceeding. Appointment of a lawyer for child avoids that outcome. Ms Bee notes that Ms Marsden makes no direct criticism of lawyer for the children or that the material made available to the Judge would have varied had that appointment not been made.
[67] Ms Bee points to further practical considerations including, who would take the child to a judicial interview, who would advise the child as to the relevant process and their role and the role of the Judge, would it be appropriate for a partisan parent to take the child to the judicial interview?
[68] Ms Bee submits the Family Court would be compromised in considering the views of children if this Court was to hold there is no jurisdiction to appoint lawyer for the child in a family violence case that does not engage COCA proceedings. A Family Court judge would be denied the opportunity to assess the children’s safety, the risk of family violence and the seriousness of the behaviours that led to the making of the order. Ms Bee submits that it is the appointment of lawyer for the child that is the essential safeguard to protect the interests of the children.
Discussion – should the protection order have been discharged?
Prior determination
[69] Ms Marsden submits the Judge effectively permitted the respondent to relitigate the history of family violence, notwithstanding the respondent having filed
evidence acknowledging the alleged family violence and the protection order having been made by consent.
[70] The Judge did not list every incident of family violence detailed by Ms Hagley. I agree with Ms Bee that, in light of the respondent’s concession he had acted violently towards the appellant throughout the course of the relationship, it was not essential for the Judge to do so. It was important, however, that a summary of the history of family violence fairly reflected the nature, gravity and frequency of that violence.
[71] The original application for a protection order detailed evidence of what was described as a strangulation offence committed by the respondent on the appellant in about 2010. After a function at a rugby club, the respondent grabbed the appellant around the neck and held her such that she was unable to breathe, strangling her. Upon seeing a Police car, the appellant got Police to drop her home. The respondent said the incident was a long time ago and he was embarrassed by it.
[72] The Courts will always treat an allegation of strangulation seriously. That assault should have featured in the Judge’s summary of the family violence.
[73] Further, the Judge omitted reference to relevant details of the event of 1 August 2022 that catalysed the separation and subsequent protection order application. That evening, the respondent came home after drinking. He and the appellant argued about an incident the previous day where Mr Hagley had attempted to drive one of their daughters to hockey after drinking. They also argued more broadly about his drinking. Mr Hagley grew angry, pinned Ms Hagley on the couch, and began abusing her as she tried to push him off with her feet. She left to the bedroom, but he followed and swore at her. The appellant called the respondent’s father who came round and tried to get Mr Hagley to come with him. He refused to leave, and the Police were called. It took hours for Police to arrive, during which time the respondent continued to consume a significant amount of alcohol. When Police arrived, they argued with the respondent. While Ms Hagley was filling out a Police Safety Order, the respondent attempted to enter the house and had a confrontation with an officer. The two had an altercation, leading to Mr Hagley being pepper sprayed. He broke an arm during this incident. The children witnessed aspects of the incident and were distressed.
[74] The respondent’s recollection of the evening is that he was drinking, and the appellant started kicking him in the chest and jaw. He says he was not aggressive or angry and saw no reason to leave the house with his father. He re-entered the property to say goodbye to the appellant and apologise but grew frustrated when Police would not let him see her. He accepts he was intoxicated and should have walked away. He says the officer escalated what was “merely” a stand off by pushing him away and punching him. He takes “strong issue” to how the incident was handled. He issued an apology wherein he stated he could “blame no one other than myself for my poor choices that night”.
[75] Mr Hagley was charged with assaulting a person in a family relationship (representative) and assaulting Police. He entered guilty pleas to both charges. The summary of facts described the respondent as heavily intoxicated, becoming aggressive and striking the officer seven to ten times.
[76] I agree with Ms Marsden that omitting reference to those particular incidents, and to aggravating details in relation to other incidents, gives rise to a concern that the Judge understated the seriousness of the violence inflicted throughout the course of the relationship and relevant to an ongoing need to protect the appellant. But, I do not agree that this omission equates to ignoring the prior determination of the family violence allegations.
[77] As Ms Bee submits, Mr Hagley did not contest that he had engaged in behaviours that justified the protection order. Ms Marsden contends that, in evidence, Mr Hagley was permitted to contest or recast incidents that had previously been admitted, and the Judge then summarised those incidents recording Mr Hagley’s minimisation and explanations but failed to refer to the conflicting evidence from Ms Hagley.
[78] It was inevitable past events addressed in the affidavits would be the subject of cross examination at the hearing of the application to discharge the order. The respondent’s acknowledgement and acceptance of responsibility for the past events were relevant considerations in determining future risk and whether ongoing protection of the appellant was necessary.
[79] I accept the Judge did, in summarising selected incidents, refrain from making factual findings. Rather, the Judge referred to what was described as a “claim” by the appellant, followed by a reference to the respondent’s denial. Ms Marsden submits this amounted to re-litigation of events previously determined. I disagree. The critical credibility/reliability finding was recorded later in the decision. The Judge found that in any areas of conflict between the evidence of the appellant and the respondent, she preferred the evidence of the appellant, having regard to the respondent’s issues with alcohol.28 That finding answers the appellant’s complaint the Judge ignored the prior determinations of family violence.
[80] I agree with that finding and approach the case on the basis that each of the claims made by the appellant were satisfactorily established on the evidence unless the Judge made an express finding to the contrary.
[81] In my view, the difficulty with the approach adopted by the Judge is not that the Judge engaged in a review of matters that had previously been determined but, rather, the decision tends to dilute the extent and seriousness of offending conduct relevant to the discharge application.
Erroneous approach
[82] Ms Marsden submits the Judge became unduly focused on a consent parenting order (a matter not before the Court) and in doing so failed to properly consider, as a discrete issue, the application to discharge the protection order. Counsel submits this error in approach reflected a predetermination of the discharge application and was a consequence of the Judge’s view, having met with the three daughters, that the protection order was an impediment to joint parenting.
[83] The Judge interviewed the three teenagers immediately prior to the commencement of the hearing. The impression each child made at interview is strongly reflected in the judgment. The Judge described M as being aligned with her mother and being against the discharge of the order, while C and P were in favour of that course. The Judge recorded C’s report that her struggles with depression and
28 At [29](b).
anxiety were magnified significantly by the protection order and that P was tearful when discussing the continuation of the order. The Judge recognised it was difficult to give significant weight to how much the protection order actually contributed to C’s mental health struggles. I observe that on appeal it was agreed the Judge erred in considering C had made a suicide attempt—this in fact related to the suicide of another person.
[84] The Judge’s assessment of C’s position significantly influenced the approach taken to the discharge application and was a matter to which the Judge attached considerable weight in determining to discharge the order.
[85] The Judge’s interviews with the children featured at the beginning of the judgment and led her to encourage the parties to reconsider their positions on the proceeding. The Judge was clearly concerned about how the parties’ methods of communication were detrimentally affecting the children. In considering the children’s views, the Judge concluded the protection order was an impediment to joint parenting and was causing unnecessary stress to the children.
[86] Notably, neither party had initiated COCA proceedings. Rather at the conclusion of the hearing, the Judge, of her own volition, initiated COCA proceedings by inviting the parties to make an oral application for a parenting order. Ms Bee made that application on behalf of Mr Hagley. The terms of a parenting order were then determined within the context of a family violence proceeding. In my view, that is how this proceeding derailed.
[87] It is clear that having interviewed and been thoroughly impressed by the three children, the Judge considered it appropriate to utilise the discharge hearing to address COCA issues. I agree with Ms Marsden that the primary focus of the Judge appears to have been the interests of the children. The children were protected persons under the protection order. Their interests were a relevant consideration.29 However, an application to discharge a protection order made for the primary purpose of protecting a parent is not a proceeding where the best interests or views of the children are at the heart of the enquiry.
29 Section 110(2)(j).
[88] Any concerns as to the welfare of the children could appropriately have been dealt with, distinctly from the family violence proceedings, by way of application under the COCA. The necessary focus of this family violence proceeding was the safety of the appellant and, to a lesser extent, the three children. COCA proceedings focus on the welfare and wellbeing of the children. It will not always be the case that these proceedings will pull in the same direction. In this case they did not. Prioritising the appellant’s safety is not necessarily in the children’s best interests—which was the position the Judge took. However, that predicament is properly addressed by considering welfare and wellbeing issues relevant to the children in a separate COCA proceeding.
[89] A secondary issue is the significant weight the Judge attributed to the views of the children. Some caution is required generally. Greater caution is required if those views might be determinative of the application. I make three observations. First, given the acrimonious relationship between Mr and Ms Hagley, as well as evidence of C attempting to conceal matters deleterious to her father’s application, the Court must be wary of the risk the views expressed are motivated by achieving a particular outcome. Second, the views of the children were not given on oath and were not tested in court by cross examination. While that will generally be entirely appropriate, if significant weight is to be attached to the views of the children and a party has a concern as to whether that view is reasonable and validly held, the inability of a party to challenge the view expressed is necessarily limited. Third, the views expressed by C as to her own mental health would more appropriately have been offered and/or supplemented by a suitably qualified expert.
[90] In my view, the Judge fell into error in failing to attach appropriate weight to the mandatory considerations set out in s 110(2). Most particularly, the Judge relegated the interests of the appellant in favour of those of her children. To do so was an error.
Predetermination
[91] I do not accept that the invitation made by the Judge at the outset of the hearing for the parties to reconsider their positions, was indicative of predetermination.
Rather, the invitation reflected the Judge’s assessment of the best interests of the children. As discussed, the interest of the children was a relevant consideration.
[92] I accept the Judge not referring to any new evidence given by the appellant and focusing more on the respondent’s explanations or acknowledgments might give cause for concern that the Judge failed to consider relevant factual matters. The Judge did nevertheless record that she preferred the appellant’s evidence where there was conflict and that she had had regard to all matters traversed in the evidence.
[93] The various factors raised by Ms Marsden might be indicative of an erroneous approach, but I am not persuaded they amount to predetermination. The Judge conducted the hearing fairly and impartially. That the outcome aligned with the strong view the Judge took as to the best interests of the children does not equate to predetermination.
[94] Having determined the approach adopted was in error, I turn my mind to the s 110(2) considerations and engage in a merits-based assessment of the respondent’s application.
The s 110(2) considerations
Length of time since the order was made (s 110(2)(a))
[95] The passage of time since the order was made will always be a relevant factor in considering an application to discharge a protection order. It is a factor which must be assessed in context. For instance, if the conduct that gave rise to the order took place over a prolonged period, the offending behaviours are more likely deeply ingrained and require either more intensive rehabilitation or an otherwise significant shift in circumstances before the Court might consider that sufficient time has passed, such that the order is no longer necessary. In this case, the offending behaviour occurred over many years. The affidavits illustrate that there is allegation and counter- allegation as to behavioural shortcomings throughout the marriage.
[96] Overall, I consider the 22 months that had passed between the making of the initial order and the decision of the Judge to discharge the final order to be a neutral factor.
The behaviour leading to the making of the order (s 110(2)(b))
[97] I accept that family violence is conceptualised as a pattern of harmful behaviour that is more than just the incidents of physical violence on a particular occasion. Ms Marsden says the Judge wrongly focussed on particular incidents and, even then, failed to recognise key incidents outlined in the evidence including a strangulation after an event at a rugby club, as well as key details of the assault of the police officer on 1 August 2020 that gave rise to a conviction for assaulting Police, and the episodes of violence when Ms Hagley refused to have sex with the respondent.
[98] The Judge highlights several family violence incidents. In my view, the evidence reveals a pattern of family violence perpetrated by the respondent against the appellant in various forms. The violence would, on occasion, leave the appellant with injuries and was traumatising. Particular instances involved more serious and potentially dangerous physical violence, such as the strangulation event. In the Law Commission’s report on strangulation as a criminal offence, it noted:30 “It is the terror that results from strangulation that is at the heart of this kind of criminal conduct. That terror is likely to seriously affect all aspects of the victim’s life.”
[99] I also accept family violence was present in the form of psychological abuse with the respondent berating and belittling the appellant. In reference to the appellant’s allegations of psychological abuse, the respondent rejected “ever questioning [Ms Hagley’s] parenting” because the appellant “is an excellent mother”, yet in his email to the appellant of 18 June 2021, the respondent referred to the appellant as having “zero parenting ability”. While this email came after the relationship had ended, it speaks to the respondent’s perspective of the appellant’s parenting at times and the credibility of his denial.
30 Law Commission Strangulation: The Case for a New Offence (NZLC R138, 2016) at [5.44].
[100] A feature of much of the family violence leading to the protection order appears to have been the respondent’s drinking. On the appellant’s evidence, his intoxication was a recurring theme of relevant family violence, including the August 2020 event leading to the protection order. In an affidavit of 27 July 2021, the respondent, in referring to the violence he perpetrated during the relationship, admitted that: “often I was under the influence of a substantial amount of alcohol”.
[101] The behaviour that gave rise to the order occurred with regularity throughout the relationship, most commonly when the respondent was under the influence of alcohol. The relevant behaviour was frequent and evidenced a pattern of coercion and control.
Tim’s acknowledgement of past behaviour leading to the order (s110(2)(c))
[102]The Judge found the respondent acknowledged his behaviour has fallen short.
[103] I accept Mr Hagley has made several acknowledgements of his behaviour which led to the order and expressed contrition in relation to that behaviour while also wishing to focus on the future. In relation to alcohol, he recognised he “abused alcohol as a coping mechanism” and, in his first affidavit in 2020, noted that he was staying away from alcohol due to the effect the August incident must have had on his daughters. Mr Hagley has stated that he accepts there was violence in his marriage and that his behaviour has been out of control, which, he says, he has had to own.
[104] However, in a number of instances the respondent minimises his behaviour or externalises the blame for it. He has said his use of alcohol was a method of coping with the “toxic environment” of his relationship. In his 27 July 2021 affidavit, after acknowledging the contribution of alcohol to his behaviour, he lays the blame at his unhappiness at his relationship with the appellant. He makes frequent complaint of the appellant criticising his drinking. He has downplayed aspects of the perpetrated family violence, for instance saying he had never committed an act of serious violence. At the hearing, the respondent gave accounts of events that minimised the seriousness of the family violence after having previously broadly accepted them.
[105] This approach of ostensibly accepting responsibility at some points and minimising it at others reflects a patterned response. Following the August 2020 incident, Mr Hagley wrote a letter of apology to the relevant police officers, saying: “I blame no one other than myself for my poor choices that night”. In subsequent evidence, he takes “strong issue” with the role the officers’ actions had to play in the assault and characterises his role at times as passive and defensive. Mr Hagley’s guilty plea on the representative assault charge indicates an acceptance of responsibility. He has considered this to be an acknowledgement of past behaviour. However, he has also referred to the plea as “taking one for the team” which he allegedly did due to the burden it otherwise would have imposed on family and friends.
[106] I am not persuaded the respondent acknowledges the seriousness of the family violence. He demonstrates a tendency to minimise the violence and to focus on his own predicament. I do not consider significant weight can be placed on the respondent’s acknowledgement of past behaviour leading to the order.
Whether the respondent has completed and engaged with counselling (s 110(2)(d))
[107] Judge McKenzie referred to the comment recorded in the sentencing notes of Judge Lynch, when discharging Mr Hagley without conviction on a charge of assault on a person in a family relationship, that the respondent was a “standout in terms of how he has grasped the nettle and got on with his counselling”.
[108] I accept Mr Hagley had made some effort to address the causes of his behaviour. He completed the mandatory stopping violence course. He attended AA for ten months, completing to step three of twelve in their programme. He self- referred to Hamish Johnson and Murray Winn for alcohol counselling. In his affidavit of 13 October 2020, at which point the respondent was abstaining from alcohol, he said, “I intend to continue abstaining from alcohol…and believe it necessary to break the cycle”.
[109] Judge McKenzie accepted Mr Hagley had done a great deal of personal work and appropriately observed that the question was whether that translates to actual change.
[110] There was no doubt Mr Hagley had positively engaged with counselling prior to being discharged without conviction by Judge Lynch in June 2022. Shortly thereafter, he resumed drinking and ceased attending AA. In the Family Court he refused to disclose the report prepared by Mr Johnson. Avoiding a conviction for a family violence offence seems to have been Mr Hagley’s primary motivation to attend counselling.
Whether any safety concerns have been identified by an assessor (s 110(2)(e))
[111] Mr Hagley says Mr Johnson concluded he had a moderate to mild alcohol use problem without apparent co-morbid psychiatric issues. He did not produce this report, citing privacy concerns, making it difficult to give substantial weight to it. Nevertheless, I accept there is no evidence an assessor identified a safety concern.
Family violence or breaches of the order since it was made (s 110(2)(f))
[112] Ms Bee highlights the absence of further violence or breaches giving rise to a prosecution since the order was made. Ms Marsden submits the Judge understated the extent of the breaches.
[113] Ms Hagley gave evidence of a number of breaches of the protection order. Mr Hagley sent Ms Hagley flowers on her birthday, 25 September 2020. He sent a text to her on 10 October 2020 trying to meet. On 28 April 2021, he sent the appellant a photograph of her, saying she was the most beautiful girl he had ever seen. Further, other emails sent by the respondent to the appellant contain coercive or otherwise harassing content. In an email of 19 April 2021, he emailed the appellant and said, after she had asked him not to contact her regarding a matter: “If you have an issue regarding our daughters, how about behaving like an adult and communicate with me rather than running off to my father.” He sent another email to her on 31 March 2022 with subject line, “Rumour”. In it, he said:
I thought I should let you know there is a pretty derogatory rumour about you circling around.
Out of respect for my daughters I felt I needed to let you know and give you the opportunity to try and shout it down.
If you are unsure about the rumour I can let you know but I would rather not.
[114] The rumour concerned a person the appellant was said to have a sexual relationship with. In cross-examination, the respondent denied he sent the email to distress the appellant and said he was concerned about his daughters finding out, justifying the contact as an emergency. I do not accept that a rumoured possibility of Ms Hagley’s sex life can be considered an emergency. I do not accept the respondent informing Ms Hagley in vague terms of a “derogatory” rumour was motivated by his concern or respect for his daughters. As it happened, it precipitated further issues as C saw the email, causing significant further distress and grief among the children. In my view, the email was a form of harassment and an example of psychological abuse.
Necessity and likelihood of future contact (s 110(2)(g))
[115] A relevant consideration is the likely ongoing contact between the parties. The parties are still working through significant relationship property issues which are likely still some way from being fully addressed. They also have unresolved insurance and EQC issues in relation to homes they own. The other source of possible contact relates to their daughters. While M is moving on to tertiary study, the other two girls are at high school, play sports, and have medical needs. On the respondent’s evidence, the parties are likely to come into close contact at a number of the same sporting events. Communication regarding the girls has been a contentious point between the parties in their evidence.
[116] The parties do have means of mitigating how much direct contact between the two of them is needed. With regard to relationship property, the parties will be able, to an extent, to communicate via their solicitors and the appellant’s father.
[117] I agree the level of contact will be diminishing over time as the children of the marriage grow older. But, at least pending resolution of relationship property and while the children remain at school, there is a strong likelihood of regular ongoing contact. The need for contact, combined with an acrimonious relationship, raises the potential for conflict and need for protection of the appellant.
Risk of future family violence (s 110(2)(h))
[118] The Judge observed there had been no incident of family violence since the parties separated, notwithstanding numerous school and sports events attended by both the respondent and appellant. I will come back to this shortly.
[119] I have expressed my reservations as to the respondent’s motivation to address the various factors that gave rise to family violence and his insight into the behaviour leading to the making of the order. He appears willing to take total ownership of his behaviour in moments of external scrutiny but will later depart from that position and lay blame elsewhere or minimise the seriousness of the behaviour. That Mr Hagley has returned to drinking is a real concern in assessing ongoing risk.
[120] Of particular concern are the times he has laid partial blame on the appellant for violence done to her. The respondent raises the many events the parties have both attended as evidence that there is no longer a risk of family violence. I am more inclined to view this as evidence of the efficacy of the protection order. 31
Whether areas of concern leading to the order are no longer evident (s 110(2)(i))
[121] In my view, whether areas of concern, that led to the protection order being made, were no longer evident was a highly relevant factor to be considered by the Judge. When considering an application to discharge a protection order, the Court is particularly interested in the evidence indicative of a significant shift from the circumstances that gave rise to the making of the original order.32
[122] Ms Bee, on behalf of the respondent, acknowledges s 110(2)(i) is a key factor in considering the discharge of a protection order. The Judge made express reference to each and every s 110(2) factor other than s 110(2)(i).
[123] Ms Bee submits s 110(2)(i) was nevertheless considered by the Judge. She submits the Judge recognised the family violence had occurred whilst the parties were in a relationship. Ms Bee refers to the evidence of Mr Hagley that he was practising
31 Counsel referred to 73 such events.
32 RH v AH [2021] NZHC 957, [2021] NZFLR 368 at [11].
safe alcohol use and addressing his stress and anger management in a safe manner. Ms Bee submitted it was reasonable for the Judge to conclude that relevant areas of concern were no longer evident given the parties had separated and the violence occurred in the context of the relationship.
[124] I do not accept that submission. The fact of separation is a nigh inevitable circumstance when a protection order is made, and whilst I agree that alcohol use was a key area of concern, I am not satisfied Mr Hagley had adequately addressed that issue.
[125] The evidence established Mr Hagley engaged in a pattern of abusive conduct whilst intoxicated, sometimes followed by a period of abstention from alcohol and a relapse into past behaviours. Given the inevitability of ongoing contact between the parties, it was essential that he satisfy the Judge his problematic drinking was no longer evident.
[126] Judge McKenzie did not directly confront this issue. She relied on the sentencing notes of Judge Lynch. Judge Lynch described Mr Hagley as “a standout in terms of how he has grasped the nettle and got on with his counselling”. The Judge said Mr Hagley had a problematic relationship with alcohol but noted Mr Hagley’s contention he had maintained sobriety between 1 August 2020 (when he was arrested for assaulting Police) and 19 March 2021 (when he was arrested for breaching bail by consuming alcohol) and had not consumed alcohol since.
[127] In my view, caution was required in considering the weight to attach to those observations.
[128] First, Judge Lynch could only assess the appropriateness of the respondent’s rehabilitation, by reference to the admitted offending. Only two of the multiple episodes of family violence were before the court, and the Judge described the offending as at the “very lower end of the scale”. Second, Judge Lynch was influenced by the knowledge that a final protection order was in place. Third, Mr Hagley was no doubt highly motivated to achieve a discharge without conviction. The true test was whether he would maintain his “standout” response without the sword of Damocles
hanging over his head. Fourth, at the hearing of the application to discharge the protection order, Mr Hagley acknowledged that he had resumed drinking. While he attended AA, he only completed to step three of twelve before stopping his attendance of the programme. He had departed from his position that, “I intend to continue abstaining from alcohol…and believe it necessary to break the cycle”.
[129] In assessing the ongoing risk of inappropriate or violent behaviour directed at the appellant, it was appropriate for the Family Court to enquire as to what steps were in place to ensure there would be no return to past behaviours. It was incumbent on Mr Hagley, in seeking a discharge of the protection order, to satisfy the Judge that there was no longer any problematic issue associated with his drinking. That might have been achievable if he had stuck to his word and continued to abstain from drinking. In my view, for Mr Hagley to acknowledge alcohol was his nemesis and to cease drinking only until he had achieved a discharge without conviction on the criminal charge, raises real doubts about his insight as to why a protection order was necessary.
[130] I do not accept that the period of sobriety Mr Hagley achieved, against a lengthy history of problematic drinking and an admitted return to drinking, adequately dealt with an area of concern relevant to the discharge of the protection order.
Any protected person’s ascertained views (s 110(2)(j))
[131] Section 4(m) of the Act encourages decision-makers to consider the views of victims and respect those views unless good reason exists for not doing so. Section 83 requires the Court, in deciding whether to make a protection order, to have regard to the perception of the applicant, a child of the applicant’s family, or both, of the nature and seriousness of the behaviour and, to consider the effect of that behaviour on those parties. Those provisions colour the Court’s approach to the “ascertained views” of any protected person.
[132] As observed in SN v MN, a key purpose of the protection order is not only to prevent future violence, it is also to help the victim feel safe.33
33 SN v MN, above n 18, at [24].
Appellant’s view
[133] The appellant is strongly opposed to the order being discharged. Her evidence is that her feelings in respect of the lack of a protection order go beyond anxiety. The appellant reports a continuing fear of the respondent. She deposes this fear is sufficiently serious that it can manifest in physical reactions in circumstances where she may have contact with him. She reports not having attended a parents’ information meeting due to her fear of meeting him and that she had heart palpitations and was feeling nauseous. The fact she has attended other events where the respondent was present does not, in my mind, undermine the credibility of this account. Furthermore, I consider these fears to be reasonably held given the extent of family violence perpetrated against her.
[134] In addressing the appellant’s view, the Judge described it as regrettable the appellant had not engaged with any programmes available through the Women’s Refuge, Family Harm, or more broadly. In my view, the appellant’s level of engagement with counselling in an effort to heal from the family violence is not a factor undermining the reasonableness of her views. The conduct of the protected person is not rightly the focus of this enquiry.34
[135] The Judge described the appellant as exhibiting a real sense of strength in her evidence and as having the capability to assert herself as evidenced by her direct dialogue with the respondent at the hearing, setting out rules and conditions, and having called the Police when she felt threatened. The Judge was confident that, in the event of any future misconduct by the respondent, Ms Hagley would not be reluctant to call the Police. Overall, the Judge considered Ms Hagley’s resilience, as demonstrated by her having applied for a protection order, made complaints to the Police and as evident in the manner in which she presented in Court, supported a finding the protection order was no longer necessary.
[136]A similar argument was accepted by the Family Court Judge in SN v MN,35, 36
where the protected person’s success as a schoolteacher and her “robust and resilient
34 Takiari v Colmer [1997] NZFLR 538 (HC) at 542.
35 SN v MN [2017] NZCA 289 at [43](c).
36 SN v MN [2015] NZFC 1746.
character” were seen as diminishing the need for her protection. The Court of Appeal responded:
…the fact that somebody with such characteristics sought the formal sanction of a protection order is evidence of the effect of Mr N’s conduct. It is fallacious to assume that because a person appears robust and resilient in the workplace, where he or she is not at risk of violence, that person will not feel vulnerable in another environment such as their home.
[137] In her evidence, Ms Hagley had deposed as to her feelings of vulnerability in having to communicate with the respondent and her fears of being confronted by him. She described panic attacks and high levels of anxiety. I do not doubt that within the formality, security and comfort of the courtroom, while supported by counsel and knowing that the respondent was seeking to persuade the Judge that he presented no ongoing risk to the appellant and had adequately addressed past issues, that Ms Hagley might have given the impression she had the strength to assert herself. But I agree with Ms Marsden that there is an overriding concern that, outside of the courtroom, Ms Hagley’s vulnerabilities are very real.
Children’s views
[138] I have referred to the views of the three daughters. By way of summary, M supported her mother. C and P said they wanted the protection order discharged. C held particularly strong views. The Judge considered the views of the children assumed great significance in determining the application to discharge the protection order.
Conclusion as to discharge of protection order
[139] The Court must not discharge a protection order unless satisfied that the order is no longer necessary for the protection of the protected person.37 Having regard to the various factors in s 110(2) and to the interest of the children, I am not so satisfied. The appeal will be allowed and the protection order re-instated.
[140]I turn to deal with the jurisdictional question.
37 Family Violence Act 2018, s 110(1).
Discussion – jurisdiction to appoint lawyer for child
[141] By minute dated 5 April 2022, Judge McKenzie directed: “Lawyer for child to be appointed on standard brief.” The Judge did not refer to the statutory authority for the appointment. Ms Marsden submits the appointment was ultra vires. Ms Bee and Mr van Bohemen submit the appointment was lawfully made under s 166(1)(c)(ii) of the Act.
[142] In practical terms, this ground of appeal is of no consequence. The Judge was able to ascertain the views of the children by way of judicial interview, rather than via lawyer for child. Nevertheless, counsel informs the Court there is divided opinion within the Family Court as to the interpretation of s 166(1)(c)(ii) and therefore seek the view of this Court.
[143] The provision at the heart of this jurisdictional dispute is s 166(c)(ii). It is helpful to have regard to s 166 in its entirety:
166 Court may appoint lawyer
(1)In any proceedings under this Act (not being criminal proceedings), the court may appoint a lawyer—
(a)to assist the court; or
(b)to represent a child—
(i)in any proceedings on an application made, on behalf of that child, under section 62(2)(a), for a protection order; or
(ii)in any proceedings relating to or arising out of a protection order made, under this Act, on any such application made on that child’s behalf; or
(c)to represent a child (unless the child is, in the proceedings concerned, already represented by a lawyer)—
(i)in any proceedings on an application made under sections 60 and 64(1) for a protection order, or made under sections 64(2) and 89 for a direction that a protection order apply, against the child; or
(ii)in any proceedings relating to or arising out of a protection order or a direction made, under this Act, on any such application; or
(d)to represent a person lacking capacity to whom section 67 applies—
(i)in any proceedings on an application made, on behalf of that person, under section 67(2), for any order under this Act; or
(ii)in any proceedings relating to or arising out of an order made, under this Act, on any such application made on that person’s behalf.
(emphasis added)
[144] When the Family Violence Act 2018 was enacted, Parliament saw fit to extend the Court’s jurisdiction to appoint a lawyer to represent children in relation to family violence proceedings. Section 166(1)(b) replicates s 81(1)(b) of the now-repealed Domestic Violence Act 1995 and permits the Court to appoint a lawyer on an application for an order under the Act made on the child’s behalf or in relation to any matter arising out of or relating to such an application. Section 166(1)(c) extends that jurisdiction in relation to any application for an order against a child.
[145] Subsection (i) of each of s 166(1)(b), (c) and (d) permit the appointment of a lawyer in relation to any proceedings on an application for a protection order.38 Subsection (ii) of s 166(1)(b), (c) and (d) permit the appointment in any proceedings in relation to or arising out of a protection order made under the Act.39 Section 166(1)(b)(ii) is cross referenced to s 166(1)(b)(i) by the words “on any such application made on that child’s behalf”. Similarly s 166(1)(d)(ii) is cross referenced to s 166(1)(d)(i) by the words “on any such application made on that person’s behalf”. Section 166(1)(c)(ii) simply reads “on any such application.”
[146] Mr van Bohemen, submits s 166(1)(c)(ii) has extended the Courts’ jurisdiction to permit the Court to appoint a lawyer to act for a child in any matter arising out of or in relation to a protection order made under the Act. In his submission, that subsection ought to be read independently of s 166(1)(c)(i) and is not confined to a proceeding related to a protection order application, or direction that a protection order apply, against a child. Ms Marsden submits that that interpretation is strained and
38 Section 166(1)(d)(i) applies to an application for any order under the Act.
39 Section 166(1)(d)(ii) applies to any order made under the Act.
inappropriate. In her submission, it is clear Parliament intended s 166(1)(c)(ii) to be read as applying to matters relating to or arising out of proceedings against a child.
[147] In my view, poor drafting explains the omission from s 166(1)(c)(ii) of the words “on any such application against the child”. Read in light of s 166(1)(c)(i), the reference to “any such application” in sub-cl (ii) strongly indicates this refers only to applications made under ss 60 and 64(1) for a protection order, or made under ss 64(2) and 89 for a direction that a protection order apply, against the child, as per sub-cl (i). If s 166(1)(c)(i) and (ii) were not intended to be “tied” together in the same manner as in s 166(1)(b) and (d), the section would simply permit a court to appoint a lawyer to represent a child in any proceeding relating to or arising out of a protection order or direction made. If that was Parliament’s intent, there would be no need to permit an appointment in an application made on behalf of, or against a child.
[148] Is it notable that s 166(1)(c)(i) and (ii) both refer to a protection order and to a direction as to a protection order. That commonality of the language follows the pattern of s 166(1)(b) and (d) and is, in my view, indicative of Parliament’s intention to confine the circumstances when an appointment can be made.
[149] Further, on the interpretation advanced by Mr van Bohemen and Ms Bee, whilst an appointment would be permitted on an application to discharge a protection order, it would not be permitted on an application for a protection order. Section 166(1)(b)(ii) refers only to an appointment where an order (or direction) has been made.
[150] Support for the narrower interpretation is found in s 64 of the Act. That provision, concerning applications for a protection order against children, states:
(3) In determining under this section whether a protection order, or direction under section 89, is justified by special circumstances, the court—
…
(b)may, if the child is not represented by a lawyer in respect of the proceedings related to the order or direction, appoint a lawyer under section 166(1)(c) to act for the child in respect of those proceedings;
(emphasis added)
[151] It is notable that s 64 refers to the entirety of s 166(1)(c). If s 166(1)(c)(ii) was intended to apply to “any proceedings” relating to a protection order, and conversely was not intended to be restricted to proceedings for orders against the child, it is reasonable to assume s 64(3)(b) would refer specifically to s 166(1)(c)(i). By making direct reference to the whole of s 166(1)(c), it can be inferred that both sub-cls (i) and
(ii) concern only the application/direction made against a child.
[152] I consider that interpretation is consistent with the scheme of the Act. The Act provides a court, in certain circumstances, jurisdiction to appoint lawyer for child, requires a court to take account of views, and allows for reports and assistance in relation to a child to be obtained. In cases where the interests of children are less central to the enquiry, views can be obtained by way of a judicial interview “if the court is required, or considers it necessary or desirable”, to ascertain them.40 From a pragmatic perspective, appointing a lawyer in such cases may give rise to added expense or delay, which is contrary to the Act’s principle that access to the court should be as speedy, inexpensive, and simple as is consistent with justice.41
[153] While the principle under s 4(m) that decision makers should (not must) consider and respect the views of victims of family violence supports a broad interpretation of s 166(1)(c)(ii), the judicial interview process prescribed in s 168 of the Act adequately safeguards this principle. Principle 4(m) can be contrasted with s 6 of COCA – “a child must be given reasonable opportunities to express views on matters affecting the child”.42
[154] The narrower approach is not inconsistent with the rights of children under the Bill of Rights Act and the United Nations Convention on the Rights of the Child. The Act allows for the children to be heard.
[155] Ms Bee raises practical considerations. She asks, if the only way the views of the children could be ascertained is by way of judicial interview, who would be
40 Section 168.
41 Section 4(o).
42 Care of Children Act 2004, s 6(2)(a).
transporting the children to that interview (and if it is a parent who does so, that the parent may be the parent who a child is aligned with)? She submits that the child’s first and only interaction in the proceedings would be to meet a Judge on their own without the benefit of a neutral explanation of the role and process.
[156] I accept the process of obtaining the views of a child might be easier to manage if the child has legal representation. However, a judge is able to provide a neutral explanation of role and process while also making assessments of possible bias (as this case has demonstrated). There is also scope, under s 166(1)(a) of the Act and s 9C(1)(c) of the Family Court Act 1980, for the Court to appoint a lawyer to assist the Court in matters such as providing explanations to children. The Court might give directions as to who might take responsibility for preparatory measures prior to judicial interview and as to who might transport children to the Court for judicial interview. The practical consequences that may flow, as outlined by counsel, do not strike me as insurmountable. But, regardless, any practical consequences cannot, in my view, override the clear wording and intent of s 166.
[157] The other points raised by counsel as to BORA and UNCROC similarly do not, in my opinion, outweigh the more plain textual interpretation in this case.
[158] The appointment of lawyer for child in relation to a protection order made in favour of Ms Hagley was ultra vires.
Observation
[159] I acknowledge that with the passage of time, the absence of any repeated acts of violence directed to the appellant, and recognising that the scope for contact between the parties will decrease as relationship property and childcare issues are resolved, there may well be good grounds to discharge the protection order. Ms Hagley’s views may change if Mr Hagley’s assurances that his past conduct is indeed confined to history are proven reliable by the passage of time.
[160] As confirmed by the Court of Appeal in Surrey, an appeal in a Family Violence Act case (then proceeding under the Domestic Violence Act) will consider the
evidence as presented in the Family Court, absent special circumstances.43 If circumstances have changed since the hearing in the Family Court, the appropriate course is for the respondent to reapply for a discharge of the order.
Result
[161]The appeal is allowed. The protection order is re-instated.
[162] The appellant is entitled to costs on a 2B basis. If costs cannot be agreed between the parties, then the appellant may, within 10 working days from the date of this decision, file a memorandum. The respondent may, within a further 10 working days, file a memorandum in response. Any such memoranda should be limited to five pages in length.
...................................................
Eaton J
Solicitors/Counsel:
Stephanie Marsden, Barrister, Christchurch Sarah Bee Law, Barrister & Solicitor, Selwyn Stephen van Bohemen, Barrister, Central Otago
43 Surrey v Surrey, above n 17, at [59].
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