Lowe v Huang HC Wellington CIV-2004-485-2630
[2007] NZHC 1683
•28 February 2007
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2004-485-2630
BETWEEN YU MING LOWE AKA ERIC LOWE Appellant
AND BI XIA HUANG Respondent
Hearing: 27 February 2007
Appearances: Appellant in person
No appearance for Ms Huang
Judgment: 28 February 2007
In accordance with r540(4) I direct the Registrar to endorse this judgment with the delivery time of 11.30am on the 28th day of February 2007.
RESERVED JUDGMENT OF GENDALL J
[1] This is an appeal against a protection order made on 19 April 1999 in the Family Court at Wellington against the appellant (Mr Lowe) in favour of the respondent (Ms Huang). At the conclusion of a defended hearing the Family Court Judge (then Judge D J Carruthers) made a final protection order and later recorded his detailed reasons in writing. The order confirmed a temporary protection order made ex parte on 2 December 1998. Mr Lowe also appeals against the order for costs of $1,500 and disbursements of $1,268.82 made against him on 19 April 1999.
Background
[2] The background facts are set out in the judgment of Judge D J Carruthers and
I have reviewed the extensive affidavit evidence and transcript of the defended
YU MING LOWE AKA ERIC LOWE V HUANG HC WN CIV-2004-485-2630 28 February 2007
hearing in the Family Court at Wellington. Ms Huang, and her two witnesses, Mr and Mrs Jones, gave evidence on oath and were cross-examined, as was Mr Lowe.
[3] Mr Lowe and Ms Huang married in Wellington on 20 November 1992 but never physically lived together. The marriage was dissolved on Ms Huang’s application for dissolution filed on 25 January 1996. Mr Lowe opposed the application, which was determined after a defended hearing by District Court Judge R F Pethig in a reserved decision on 5 June 1996. It seems, thereafter, that Mr Lowe had some difficulty in coming to terms with the order for dissolution. In his judgment of 19 April 1999 Judge D J Carruthers said that there was an established pattern of obsessive and systematic contact by Mr Lowe of an unwelcome nature which, although denied in evidence by Mr Lowe, the Judge accepted Ms Huang’s evidence that the long history of contact was unwelcome.
[4] The Judge set out the definition of domestic violence as contained in s3(2)(a) of the Domestic Violence Act 1995 and although the Judge said that he did not intend to canvass the “distant past” on Mr Lowe’s own admission he had written in excess of 30 letters to Ms Huang since the dissolution, to which none had been replied and there was independent evidence of Mr Lowe visiting other people and what the Judge found was intended to be an unwelcome pursuit or harassment of Ms Huang. The Judge said that whilst some instances superficially may have been evidence of genuine concern they nevertheless continued to be a part of Mr Lowe’s obsession with Ms Huang and the Judge believed her in her evidence that Mr Lowe interfered with her private life. The Judge said:
“I believe that when seen as part of a pattern of behaviour, particularly since the divorce such activities fall very clearly within the definition of domestic violence and there is convincing evidence of this constant intrusion into Ms Huang’s life from which she is entitled to be protected.”
[5] The Judge found that the need for protection of Ms Huang continued, it being clear that Mr Lowe had not severed his emotional connection with her. The Judge made some firm and stinging findings of credibility concluding that Mr Lowe’s defence of the action did not have any merit and there was nothing in his behaviour
or response to the Family Court, which indicated a genuine repentance for his actions.
Legal principles
[6] These are well known. Appeals such as this are by way of rehearing. This Court will only interfere with the Judge’s decision if he wrongly applied the law, took into account irrelevant factors or failed to consider relevant factors, or was plainly wrong. The Judge had to determine whether there had been domestic violence proven in the form of psychological abuse and whether in terms of s14(1)(b) of the Domestic Violence Act 1995, the making of the protection order was necessary for the protection of Ms Huang. Domestic Violence is described in s3(2)(a) of the Act as meaning:
“(a) Physical abuse: (b) Sexual abuse:
(c) Psychological abuse, including, but not limited to,— (i) Intimidation:
(ii) Harassment:
(iii) Damage to property:
(iv) Threats of physical abuse, sexual abuse, or psychological abuse:
(v) ….”
[7] As is clear from s3(4) a single act may amount to abuse for the purposes of being abuse and a number of acts that form part of a pattern of behaviour may amount to abuse even though some or all of the acts when viewed in isolation may appear to be minor or trivial.
[8] Subsection (5) provides that behaviour may be psychological abuse which does not involve actual or threatened physical or sexual abuse.
Discussion
[9] As is apparent this appeal has taken eight years to come on for hearing. Part of that reason may be that Ms Huang has not been able to be served with notice of the hearing. It was thought she may have returned to China, her country of origin, but Mr Lowe assured the Court that she resides somewhere in Auckland. There have been a number of conferences and appearances since early 2005 and I directed that the matter be completed today and Mr Lowe has represented himself.
[10] In his notice of appeal Mr Lowe contended that the Family Court Judge
• did not have the opportunity to hear material evidence;
• there has been a “miscarriage of justice”.
In his notice dated 27 March 2006 he advanced the further contentions that
• the Family Court Judge was “biased”;
• he seeks to introduce “new evidence” not available at the time of the hearing.
[11] The application to adduce new evidence was expanded upon subsequently at the hearing of the appeal. Mr Lowe had originally submitted to the Court copies of two newspaper reports dated 30 June 2000 and 9 February 2006 which had headlines:
“Man sues woman over ‘rape’”
and secondly:
“Young women as likely to bash partners – study”
Neither related to Ms Huang and had no probative value to the appeal issue.
Mr Lowe at the hearing applied to introduce into evidence a number of other matters, articles, photographs or items. These included:
• an internet search relating to news coverage of a false complaint made by a woman against another man said to be published in the Southland Times on 10 December 2005. It had no relevance to Ms Huang;
• an undated newspaper report under a heading “Underwear thief active in
Mt Victoria”;
• material dated 24 January 1999 issued by the Wellington Chinese
Operatic Society;
• certain photographs Mr Lowe said he recently took of premises originally occupied by Ms Huang;
• other written material relating to offices of the New Zealand Chinese
Association;
• a report of a newspaper article on 16 December 1996 referring to the death of Mr Lowe’s brother on 24 June 1995; and
• a photograph of persons who Mr Lowe said are his mother and cousin taken recently.
[12] Whilst it is open to this Court on appeal to accept new evidence, and pursuant to s164 of the Family Proceedings Act 1980 the Court may receive any evidence that it thinks fit, whether otherwise admissible in Court or not, none of the matters which Mr Lowe has sought to introduce have any probative value or bearing on the outcome of the appeal. Many are hearsay statements or opinions having no relevance at all to matters in issue concerning Mr Lowe, are not remotely capable of being relevant to the finding of the Judge that there had been psychological abuse of Ms Huang. Mr Lowe believes that those documents or matters and photographs illustrate that Ms Huang’s evidence ought not have been accepted by the Judge, but
the items sought to be introduced do not have any bearing upon the Judge’s finding as to her credibility. Nor, for that matter are they relevant to the credibility of the two witnesses Mr and Mr Jones, who said they had been visited by Mr Lowe and sent letters which, in the Judge’s view was confirmation “of the obsessive nature of [Mr Lowe’s] search for continued connection with Ms Huang”.
[13] None of the suggested “evidence” has any relevance to issues before the Court and illustrates a misunderstanding of Mr Lowe as to what the real issue is. The material he submitted would not assist the Court in determining the outcome of the appeal. Leave to adduce it is declined.
[14] Psychological abuse may take an infinite variety of forms. Obviously it requires some behaviour on the part of the perpetrator directed ultimately at another. Whether or not such behaviour amounts to psychological abuse is a question of fact. It is to be determined in the context of all the surrounding circumstances, historical as well as proximate or present, as they relate to the abuser and victim. Psychological abuse typically plays on a victim’s mind and emotions, and often does not involve physical contact; C v C FC NEL FP042/37/97 25 May 1997
Judge Grace. In G v C (1997) 16 FRNZ 201 at 208 Judge Walsh said:
“While it is impossible to define psychological abuse absolutely I think it can be said that there are some characteristics of behaviour that are peculiar to psychological abuse such as:
•Behaviour which chips at a person's confidence or is designed to ‘put a person down’ or humiliate that person.
•Abuse of power, which by degrees makes another person apprehensive and unsettled.
•Exploiting an emotional or psychological vulnerability of another party.
•Indulging in behaviour designed to unsettle, antagonise, offend, annoy, provoke or worry another party.
• Implicit or explicit threats.
Those characteristics are by no means exhaustive.”
[15] A single definition cannot be reliably provided to describe the type of behaviour required, which is so widely varied and can take almost infinite variety of
forms. I accept and respectfully refer to the remarks of Miller J in M v M (2005) 7
HRNZ 971, at [21]:
“I accept that in many – perhaps most – cases, psychological abuse will involve an attempt to establish or exploit a relationship characterised by control over the protected person. However, the legislature has not defined the term in that way. It is doubtful whether any single definition could encapsulate all forms of behaviour affecting the protected person’s emotional or mental state, still less the circumstances in which such behaviour will amount to abuse.”
[16] In terms of the section, a single act clearly may amount to psychological abuse. It will depend on the nature of the behaviour, its effect upon the victim and (usually but not necessarily) its purpose. There may be cases where genuine, but wrong headed beliefs or motives on the part of a person (for example, in seeking to create or resurrect a relationship) can amount to psychological abuse depending on all the circumstances. Indirect behaviour may constitute domestic violence in the nature of psychological abuse; for example Blackwell v Blackwell (1998) 17 FRNZ
584; C v H DC WANG FP083/258/99 5 April 2000 Judge Walsh.
[17] Mr Lowe submitted that there was no evidence that he had been physically or sexually violent or abusive towards Ms Huang. But it is quite clear that psychological abuse, as I have said, can take many forms and consisted, according to the judgment in this case of persistent obsessional pursuing and harassing of Ms Huang in a variety of ways. Mr Lowe does not acknowledge, or understand that. He acknowledged that he wrote a number of letters to Ms Huang to which she did not reply, and said in argument in this Court he wrote along the lines of “if you do not reply to what I say it will mean that you agree with it”. That sort of approach is a subtle example of sort of pressures that Ms Huang said was being applied to her. Of course, the Judge referred to the concern of Mrs Jones about the content of letters sent to her containing phrases such as “don’t worry I won’t harm you” which had exactly the reverse effect, as well as to a pattern of behaviour which contained the clear characteristics of psychological abuse.
[18] Beyond doubt communications, whether by telephone calls in which nothing is said or by the bombarding of a person with unwanted correspondence, are capable of being psychologically abusive. There does not have to be a specific intent to
psychologically abuse but there has to be deliberate actions, which objectively viewed, amount to such abuse whatever might be the motive of the person so acting. Likewise, the actions, which may together with other actions can comprise abuse, might be done towards another person on a separate occasion so long as the pattern of behaviour is directed at the respondent. So, as in this case, there were actions, approaches, statements and the like, made to persons other than Ms Huang but with the purpose, motive or aim of intimidating or causing fear or alarm to her. There was evidence of such behaviour.
[19] In the end, however, the issue is whether Judge D J Carruthers had erred in his conclusions as to the facts and whether they had been proven to the required standard of proof so as to satisfied the need for continued protection for Ms Huang. The evidence to support Ms Huang’s case in the Family Court was compelling. The Judge was fully entitled to make the findings of credibility that he did and to reach his conclusions of fact. He was able to do so not simply because of the evidence of Ms Huang and Mr and Mrs Jones, but based upon Ms Huang’s evidence and contemporaneous documents written by Mr Lowe to others. The Judge gave a telling example arising from Mr Lowe’s evidence which, was, as the Judge said, “the nail in the coffin” of his credibility which provided ample justification for his findings on credibility although I add there was other material available to the Judge. This Court will not reverse a factual finding unless compelling grounds for doing so are made out; see Rae v International Insurance Brokers (Nelson & Marlborough) Ltd [1998] 3 NZLR 190, 198 (CA).
[20] Mr Lowe may still not be able to understand the reasons why the order was made, but there was abundant evidence to justify it. Nothing new has been advanced to this Court. Claims as to “bias” are unmeritorious and rejected. They may be seen as an example of Mr Lowe’s continued obsessional views towards Ms Huang. Naturally, he is entitled to pursue his appeal but it was doomed to fail. The order for costs was entirely within the ambit of the Judge’s discretion. The appeal is without merit and is dismissed. I am not required to hear from or on behalf of Ms Huang.
[21] The Judge had ordered the direction that a “Stopping for Violence
Programme” be resurrected. Mr Lowe was directed to attend such programme,
details of which were to be advised by the counselling co-ordinator. Through the bringing of this appeal against the Judge’s decision Mr Lowe has so far avoided compliance with that direction. Following upon the dismissal of the appeal the direction is confirmed. In that regard the matter is remitted to the counselling co- ordinator to advise Mr Lowe of the details of the programme, which he must attend.
[22] In normal circumstances, the appeal being quite without merit, an order for costs would be made against the appellant, but given that Ms Huang has not been represented at the hearing costs are simply reserved. I record, however, that Mr Lowe is required to now comply with the Family Court order as to costs and disbursements totalling $2,768.82.
……………………………… J W Gendall J
Solicitors: Appellant in person
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