Hagley v Hagley - [2023] NZHC 1950

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hagley v Hagley

Details

AGLC: Hagley v Hagley [2023] NZHC 1950
Case: [2023] NZHC 1950
Decision Date: 25 July 2023

CaseChat Overview and Summary

Ms Hagley appeals the decision of Judge McKenzie to discharge a protection order made in her favour against Mr Hagley. The appeal proceeded by way of rehearing. The appeal raises two issues. The first issue is whether the Judge erred in her approach to the application to discharge the protection order. The second issue is whether the Judge had jurisdiction to appoint a lawyer for the children. The appeal was allowed and the protection order was reinstated. The Judge erred in her approach to the application to discharge the protection order. The Judge had an opportunity to conduct the hearing with an appropriate focus on the appellant's safety, but instead, she considered the children's views as determinative of the application. The protection order was made to protect Ms Hagley from family violence by Mr Hagley. The focus of the application to discharge the order was Ms Hagley's need for protection. The Judge did not sufficiently consider Ms Hagley's need for protection. The Judge also failed to sufficiently consider the areas of concern that led to the making of the order, most particularly Mr Hagley's problematic use of alcohol. The appeal court found the protection order was still necessary to protect Ms Hagley from Mr Hagley. The appeal court found the Judge did not have jurisdiction to appoint a lawyer for the children. The Family Violence Act permits the Court to appoint a lawyer to represent a child in relation to proceedings in relation to or arising out of a protection order. The appeal court found the reference to "any such application" in s 166(1)(c)(ii) of the Act referred to applications against a child and was not intended to apply to proceedings in relation to a protection order made in favour of a parent.

Orders