JAH v SJH

[2013] NZHC 791

NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995

ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-6217 [2013] NZHC 791

BETWEEN  JAH Appellant

ANDSJH Respondent

Hearing:         13 March 2013

Counsel:         L Soljan for Appellant

J Hunter and K Denhardt for Respondent

Judgment:      17 April 2013

JUDGMENT OF HEATH J

This judgment was delivered by me on 17 April 2013 at 4.00pm pursuant to Rule

11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Jackson Russell, PO Box 3451, Auckland Wynyard Wood, PO Box 204-231, Auckland Counsel:

L Soljan, PO Box 196, Shortland Street, Auckland

J Hunter, PO Box 5444, Auckland

JAH V SJH HC AK CIV 2012-404-6217 [17 April 2013]

The appeal

[1]      Mr JAH and Ms SJH met in June 2001.  They lived together from August

2001 until they married, on 5 November 2004.  Their son was born on 31 August

2007. About three months later, on 21 November 2007, they separated.

[2]      A  temporary  protection  order  was  first  granted  in  SJH’s  favour  on  11

November 2011.  That was based on alleged psychological and sexual abuse, in the period between separation in November 2007 and the time at which the order was made.

[3]      A final protection order was made by Judge Hikaka, in the Family Court at Manukau, on 28 September 2012.  The order was made to protect SJH,  from (what the Judge found to be) psychological abuse.1

[4]      JAH appeals against the final protection order.   Ms Soljan, on his behalf, submits that Judge Hikaka had erred in finding that JAH had psychologically abused SJH and in finding that a final protection order was necessary for SJH’s protection.

[5]      Ms Hunter, for SJH, seeks to uphold Judge Hikaka’s decision, for the reasons

that he gave.

The Family Court judgment

[6]      SJH gave evidence of behaviour by JAH that she believed was inappropriate. This behaviour included alleged sexual touching and verbal innuendo.   Those allegations formed the basis for allegations of sexual abuse.

[7]      Psychological abuse was alleged to take the form of “name calling and insults and  repeated  reference  to  [SJH’s]  mental  health,  stalking,  arriving  at  her  home

1      SJH v JAH [2012] NZFC 7412, at paras [21]– [35].

uninvited, using [their child] and [SJH’s] friends to obtain information or attempt to

obtain information about her”.2

[8]      JAH denied the allegations.

[9]      Judge Hikaka considered that SJH “did not fully disclose the information she had to hand when” she applied for the temporary protection order, on a without notice basis.  He saw that as “an impediment to her credibility”.3    As a result, the Judge was not persuaded that the allegations of sexual abuse had been proven to the required standard.4    The Judge considered that SJH had, to some degree, “put up” with some of the attention to which she had referred, thereby possibly indicating “tacit approval” of JAH’s conduct.5

[10]     Notwithstanding the Judge’s view about SJH’s credibility on the sexual abuse allegations, he was satisfied that psychological abuse had been proved.  Relevantly, he said:6

[26]     ...   That said, [JAH’s] persistence in the face of [SJH’s] stated unhappiness with his behaviour indicated a level of recklessness on his part, in that he continued with the behaviour nonetheless.   Continuing the behaviour in those circumstances undermined the suggestion that what was being done was out of kindness for [SJH].

...

[28]      However, notwithstanding that impediment, there is clear evidence of repetitive texting, some obviously unwanted and uninvited.  With respect to the nature of the unwanted texts the applicant made it clear they were unwanted.   Those who filed evidence in support of [SJH] witnessed how upset  [SJH]  was  by  the  messaging.    [JAH]  persisted.    It  bordered  on obsessive conduct.

[29]     I am satisfied that the nature of the messages and their number and frequency, caused [SJH] to be apprehensive and unsettled in her dealings with [JAH].  As a result of the fact that they continued, it became behaviour that offended, annoyed and worried [SJH].

[30]     Therefore  I  am  satisfied  [JAH]  psychologically  abused  [SJH]. Domestic violence is proven.

2 Ibid, at para [22].

3 Ibid, at para [27].

4      Ibid.

5 Ibid, at para [26].

6      Ibid, at paras [26], [28]–[30].

[11]     Having made a finding of psychological abuse, it was necessary for the Judge to consider whether a final protection order was “necessary”.  Section 14(1) and (5) of the Domestic Violence Act 1995 (the Act) states:

14  Power to make protection order

(1)       The Court may make a protection order if it is satisfied that—

(a)       The  respondent  is  using,  or  has  used,  domestic  violence against the applicant, or a child of the applicant's family, or both; and

(b)       The making of an order is necessary for the protection of the applicant, or a child of the applicant's family, or both.

...

(5)      Without limiting the matters that the Court may consider when determining whether to make a protection order, the Court must have regard to—

(a)       The perception of the applicant, or a child of the applicant's family,  or  both,  of  the  nature  and  seriousness  of  the behaviour in respect of which the application is made; and

(b)       The effect of that behaviour on the applicant, or a child of the applicant's family, or both.

[12]     Applying the Court of Appeal’s judgment in Surrey v Surrey,7 Judge Hikaka found there was evidence of a subjective fear, on the part of SJH, of future violence and that, viewed objectively, it was necessary for an order to be made.  He said:

[32]     [JAH] acknowledged [SJH’s] “mood swings” and is mindful of her mental health history and earlier engagement in [a specified] industry.  He was also mindful of the abuse [SJH] suffered as a teenager by her father, though he believes she exaggerated it.  [JAH] confirmed he authored a dated

8 July 2008 in which he says that he had brought up some of [SJH’s] past

and used it in a way that he was not proud.  He also noted that that had hurt

[SJH] and she was put in a position of having to defend herself against all sorts of accusations.

[33]      The above factors combine to present a picture of [SJH] as a person who is more vulnerable to being hurt, annoyed, upset or offended than many others.  Furthermore, [JAH] is well aware of the areas of her vulnerability and has exploited them in the past as shown by his letter.  Combined with [a disease from which SJH suffers] I am satisfied that [SJH’s] perception of the nature and seriousness of [JAH’s] actions, make her subjective fear of future incidents of similar sort, reasonable.

7      Surrey v Surrey [2010] 2 NZLR 581 (CA), at paras [39]–[43].

[34]     As in A v B [1998] NZFLR 783 Hammond J noted that in certain situations fear of intrusion can justify an order as being necessary commenting “It is precisely the psychic fear of intrusion which is the biggest problem; that an order goes in relief of that fear; and hence it is necessary”.

[35]      I am satisfied that the grounds for a protection order are met and that it is necessary that an order be made.   Final protection order to issue accordingly.

[13]     The  balance  of  Judge  Hikaka’s  judgment  addressed  JAH’s  objection  to attending a behaviour management programme,8  whether, having found domestic violence to have occurred, their son would be safe in JAH’s unsupervised care,9 and the terms of a parenting order.10

[14]     In making the parenting orders, the Judge made strenuous efforts to ensure that JAH and SJH did not meet personally when their child moved from the care of one to the other.  For example, change-overs were to take place at a school or, in the event the school was closed, at designated places in Auckland.11

[15]     There was provision for SJH to arrange for a third party known to the child to conduct change-overs and a requirement that, if both JAH and SJH attended change- overs,12  “they should ensure that they are parked in a way that enables them to remain in their vehicles while the child safely walks between” them.13

[16]     As to the need for some contact between the parents on guardianship issues, the Judge said:

[68]      ...

(q)       The parties may communicate by text or email on the basis that their communication is focused on the child’s needs, guardianship matters and other child related matters. In the event of an emergency they may communicate by telephone.

....

8      SJH v JAH [2012] NZFC 7412, at paras [36]– [39].

9      Ibid, at paras [40]–[43]. See also ss 58–61 of the Care of Children Act 2004.

10     Ibid, at paras [44]–[68].

11     Ibid, at para [68](k) and (l).

12     Ibid, at para [68](m).

13     Ibid, at para [68](n).

[17]     Although, as a matter of law, a protection order in favour of a parent extends to a child of the protected person,14 no breach of the order occurs if any (otherwise) prohibited contact is authorised by a parenting order.15    Judge Hikaka did not take account of the terms of the parenting order in determining whether it was necessary to make a final protection order.

Psychological abuse

[18]     The first  question  is  whether Judge Hikaka was  justified in  finding that psychological abuse had occurred.  For the purpose of this case, while not explicitly mentioned in the Judge’s decision, the relevant definition of “psychological abuse” includes “harassment”.16

[19]     On appeal, I am required to form my own opinion of whether the Judge’s finding was correct.  The Supreme Court, in Austin, Nichols & Co Inc v Stichting Lodestar said:17

[13] The procedure prescribed for appeals by s 27 does not provide for full de novo rehearing of evidence. While “further  material” can be brought forward under subs (8) either “in the manner prescribed or by special leave of the Court”, it is clearly envisaged that there will be rehearing on the record. That is usual, and is for example the manner of appeals under s 76 of the District Courts Act 1947. The appeal court must be persuaded that the decision is wrong, but in reaching that view no “deference”  is required beyond the “customary” caution appropriate when seeing the witnesses provides an advantage because credibility is important. Such caution when facts found by the trial judge turn on issues of credibility is illustrated by Rae v International Insurance Brokers (Nelson Marlborough) Ltd and Rangatira Ltd v Commissioner of Inland Revenue.

(footnotes omitted)

[20]     Both  JAH  and  SJH  gave  evidence  before  the  Family  Court.    SJH  was supported by a number of witnesses whose affidavit evidence was not challenged. Ms Hunter, for SJH, took me through that evidence.   It provides a foundation for

Judge Hikaka’s findings of psychological abuse.18

14     Domestic Violence Act 1995, s 16(1).

15     Ibid, s 19(2)(e)(ii).

16     Ibid, s 32(2)(c)(ii).

17     Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC).

18     SJH v JAH [2012] NZFC 7412, at para [28], set out at para [10] above.

[21]     There was evidence of a pattern of behaviour on the part of JAH that could properly be characterised as psychological abuse.  Given that the Judge was able to assess the credibility of the respective witnesses and was prepared to find that the evidence established psychological abuse, notwithstanding his adverse view about SJH’s evidence about sexual abuse, I am not prepared to depart from his finding that

abuse of that type occurred.19

Was a final order “necessary”?

[22]     In my view, this appeal turns on whether the Judge was right to hold that a

final protection order was “necessary” to protect SJH.20

[23]     Glazebrook J, delivering the judgment of the Court of Appeal in Surrey v Surrey,21 considered the way in which a Court should address the question whether a final order is necessary.  She said:

[38]      The assessment of necessity under s 14(1)(b) requires a broad-based assessment by the Court of the need for protection in the future, having regard to both the objects of the [Domestic Violence] Act and the statutory factors set out in s 14, as well as any other relevant factors. In Appendix Two we provide a more detailed discussion of the test of necessity and an analysis of previous case law on that issue.

[24]     In making his assessment on this issue, the Family Court Judge was required to consider whether past domestic violence formed part of a pattern of behaviour from which SJH needed protection.22   Also, he had to consider the subjective views of SJH about past violence; necessarily encompassing any subjective fear of future violence based on what had happened in the past.23

[25]     Q v Q [Domestic violence]24 is an example of a case in which it was held, on appeal, that a final protection order was unnecessary.   That was a case involving alleged physical and psychological abuse.   In that case, I took the view that the

Family Court Judge had erred in failing to take into account a number of important

19     Generally, see SJH v JAH [2012] NZFC 7412, at paras [27]– [29].

20     Domestic Violence Act 1995, s 14(1)(b), set out at para [11] above.

21     Surrey v Surrey [2010] 2 NZLR 581 (CA) at para [38].

22     Ibid, at paras [99] and [100]. See also s 14(3) of the Domestic Violence Act 1995.

23 Ibid, at para [101].

24     Q v Q [Domestic violence] [2012] NZFLR 582 (HC).

factors that militated against the need for a final order.  In particular, I concluded that Ms Q’s  subjective  fear  of  future  violence  might  have  been  exaggerated.    That conclusion was reached based on evidence that they had had continuing personal interaction in a family business and terms of a consent parenting order by which they had agreed that Mr Q would have reasonable contact with the children, without any of the strictures placed upon the terms of change-overs of the type imposed by Judge

Hikaka in this case.25

[26]     I must approach the question of necessity in light of the evidence available to Judge Hikaka at the time the order was made.  Obviously, there could be no evidence of the way in which the parties had responded to the arrangements put in place by the Judge in relation to JAH’s contact with his child, as the parenting order was made at the same time.   The conditions that were put in place to deal with the change-over arrangements and parental communications on guardianship issues were consistent with the Judge’s view that a final order was necessary.

[27]     In those circumstances, I am not prepared to depart from Judge Hikaka’s conclusion that a final protection order was necessary.  JAH’s remedy, if his conduct has  improved  since the  final  protection  and  parenting orders were made on  28

September 2012, is to apply to the Family Court to discharge the order.

Result

[28]     For those reasons, the appeal is dismissed.

[29]     I am unsure whether either (or both) of the parties are in receipt of legal aid In those circumstances, I reserve costs.  Any application shall be made within seven days of delivery of this judgment.  If an application were made the Registrar shall arrange a telephone conference at which I can make directions for the resolution of

that issue.  If no applications were made, costs shall lie where they fall.

Delivered at 4.00pm on 17 April 2013

P R Heath J

25 Ibid, at para [26]. Compare with this case: see paras [14], [15] and [16] above.