Lowe v Way
[2015] NZHC 93
•5 February 2015
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-001668 [2015] NZHC 93
UNDER the Care of Children Act 2004 IN THE MATTER OF
an appeal under section 143, Care of
Children Act and section 72, District Courts Act 1947
BETWEEN
LOWE Appellant
AND
WAY Respondent
Hearing: 23 and 24 September 2014 Counsel:
G E Whiteford for the Appellant
J E McLennan for the Respondent
J Robertson for the ChildrenJudgment:
5 February 2015
JUDGMENT OF DUFFY J
This judgment was delivered by Justice Duffy on 5 February 2015 at 4.45 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
LOWE v WAY [2015] NZHC 93 [5 February 2015]
[1] This is an appeal against a decision of the Family Court in which that Court made a final parenting order regarding a young child who shall be known as J.1
[2] The order put in place a parallel parenting regime, with each parent taking turn about to have sole care of J for a period of five days (“the 2:2:5:5 arrangement”). The appellant, who is J’s mother, objects to the order. Her view is that the Family Court failed to give proper consideration to the risk of violence that she perceives J will face when in the sole care of the respondent, who is J’s father.
[3] The appeal is opposed by the respondent and by counsel for J.
[4] I have carefully considered the arguments the appellant has raised. Whilst I acknowledge that there may have been some errors in the approach taken by the Family Court, I am satisfied, nonetheless, that a proper outcome was reached. For this reason, the appeal must fail. My reasons for so finding are set out below.
Background
[5] The application for the parenting order commenced before the recent amendment to the Care of Children Act 2004 (“the Act”). Before this amendment, ss 58 to 62 of the Act specifically addressed cases involving allegations of violence. Section 58 defined an allegation of violence to mean an allegation that a party to proceedings has physically or sexually abused another party to the proceedings; a child who is the subject of the proceedings; or a child of the family. Allegations of violence that fell outside this definition formed part of the general enquiry in which a parenting order was considered. The legislation’s separation of physical and sexual abuse from other forms of violence led to a practice of split hearings. The first such hearing, commonly known as the s 60 hearing, was to determine if violence as defined by s 58 was present (hereafter referred to as s 58 violence); the second hearing dealt with consequential issues, the character of which depended upon the outcome of the s 60 hearing. Allegations of violence falling outside the s 58
definition were dealt with at the second hearing.
1 J was born in June 2008.
[6] If s 58 violence was proved, that led to specific statutory considerations. Once findings of s 58 violence were made, s 60(3) prohibited the Court from making an order giving the violent party day-to-day care of a child. However, there was a proviso to this prohibition; under s 60(4), a Court was given discretion to give the violent party day-to-day care of a child, after the Court had taken into account the considerations expressed in s 61. Those considerations allowed for a case specific analysis of the form of violence involved, its impact on, and risk to the child. So, a finding on whether s 58 violence was present or not set the scene for what happened next. With an affirmative finding, the application was either discontinued at that time, or the focus turned to the s 61 considerations. Such considerations would necessarily include the Court considering allegations of forms of violence that fell outside s 58. With a negative finding, the enquiry then became focused on general concerns regarding the best interests of the child, which could include whether there was a risk of the child being exposed to other forms of violence.
[7] In the present case, the appellant made allegations of violence by the respondent. These were dealt with at a separate hearing (“the s 60 hearing”), with judgment given on 7 October 2013.2 The balance of the application was not heard until 26 and 27 May 2014, by which time ss 58 to 62 had been repealed.3
[8] On 31 March 2014, amending legislation removed the opportunity for a bifurcated enquiry into questions of violence. Sections 58 to 62 were repealed. The statutory principles relating to a child’s welfare and best interests in s 5 were amended, with the principle that a child's safety must be protected from all forms of violence from all persons being placed at the head of these principles.4
[9] Prior to the changes to the Act, the Supreme Court had said that the order in which the s 5 principles appear did not affect the weight to be given to them.5
However, there would be no point in reordering s 5 if Parliament did not intend to
2 Way v Lowe [2013] NZFC 8216.
3 Way v Lowe [2014] NZFC 4099.
4 See s 5(a) of the Care of Children Act.
5 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [3].
stress the current s 5(a) principle. The explanatory note of the Family Court
Proceedings Reform Bill states:6
New section 5 simplifies and reorders the principles relating to a child’s welfare and best interests in existing section 5 of the Act. Listed as the first principle is that a child must be protected from all forms of violence.
[10] The Justice and Electoral Committee helpfully gave some background to the amendments that dealt with allegations of violence:7
Cases involving allegations of violence
The bill as introduced seeks to repeal sections 58 to 62 of the Care of Children Act 2004 and rely instead on sections 4 and 5 to protect the welfare and best interests of the child in all proceedings under the Act as well as in any other proceedings involving the guardianship, day-to-day care of, or contact with a child. The provisions in sections 58 to 62 require the court to establish whether the violence is proven, and if it is, to determine whether the child will be safe in the care of, or having contact with, the violent person. The existing provisions are concerned only with physical and sexual violence. Psychological violence is excluded unless the applicant has a protection order under the Domestic Violence Act 1995 on that ground; and the provisions do not distinguish levels or contexts of violence. The process is also considered to result in significant delay.
Clause 4 of the bill states that the welfare and best interests of the child must be paramount, and sets out the principles that must be taken into account by the court in determining a child’s best interests. Proposed section 5(a) states that a child’s safety must be protected and a child must be protected from all forms of violence, as defined in the Domestic Violence Act, from any person. This would allow a broader inquiry into any situation that might pose a risk to a child’s safety than the current provisions. We consider that sections 4 and 5 provide strong protection for children.
[11] There were no transitional provisions in the amending legislation that might have allowed the parenting application to be determined under the former legislation. Nor would the Interpretation Act 1999 have assisted. Whilst s 18 of the Interpretation Act provides that the repeal of an enactment does not affect the completion of a matter or thing, or the bringing or completion of proceedings, the further statement in that provision referring to an existing right, interest, title, immunity, or duty has been interpreted to confine the preceding broad language: see
Foodstuffs (Auckland) Ltd v Commerce Commission.8
6 Family Court Proceedings Reform Bill 2012 (90-1), explanatory note at 5.
7 Family Court Proceedings Reform Bill 2012 (90-2), as reported from the Justice and Electoral
Committee on 4 June 2013 at 8-9.
8 Foodstuffs (Auckland) Ltd v Commerce Commission [2002] 1 NZLR 353 (CA) at [21].
[12] The appellant was of the view that the amending legislation opened the field of enquiry into all forms of violence and, therefore, the better approach was to step back and take a fresh look at the entire parenting application. The Family Court rejected this approach. The appellant now contends that the Family Court’s refusal to revisit the entire application has led to a flawed outcome in the appeal.
[13] The first hearing under the former legislation did not go as planned. Judge de Jong was case managing the application. He was satisfied that a psychologist’s report should be obtained. On 28 May 2013, Judge de Jong issued a Minute in which at [3] he directed a s 60 hearing and stated that it “is also important those findings are available to a psychologist if one is appointed”. At [4], the Judge directed a s 133 report be obtained. Then, at [15](3)(d)(ii), the Judge directed the psychologist to report on the likely psychological/emotional impact on the child of the family violence “s 60 findings”. Thus, the original plan was for the psychologist’s report to be written after the determination of the s 60 hearing.
[14] If things had gone to plan, the psychologist would have conducted his or her enquiries from a firm foundation of judicially established findings on whether s 58 violence was present or not. However, matters did not go as directed. The writer of the s 133 report was Diane Cameron. She provided her report to the Court before the s 60 hearing. This meant that Ms Cameron had to make her psychological assessments on a hypothetical basis in which she expressed different opinions that were based on each parent’s view of the alleged s 58 violence.
[15] The appellant was concerned about the change of plan and did not want the Judge in the s 60 hearing being influenced by opinions the psychologist may have expressed that went beyond the scope of the s 60 hearing. So, pursuant to a request from the appellant, the s 60 hearing proceeded on the basis that the Judge would not read the s 133 report until after that hearing. This was to ensure that passages in the report that dealt with risk assessments as part of a s 61 enquiry should not influence the Judge’s findings in the s 60 hearing. These assessments by Ms Cameron were intended to be used at the second stage of the hearing when it came to considering appropriate care arrangements.
[16] The way in which matters eventuated meant that Ms Cameron did not have the benefit of actual findings on the allegations of s 58 violence. This would have introduced a hypothetical flavour to her report.
[17] The section 60 hearing ended with the Judge finding that there was some violence on the part of the respondent, but not to the level of seriousness that the appellant had alleged. The Judge also found that there was violence by the appellant towards the respondent. The Judge considered that with those findings, a s 61 safety assessment needed to be carried out.
[18] At a judicial conference in preparation for the second-stage hearing, then counsel for the appellant confirmed that she did not intend to file further evidence.9
Notice was given that Ms Cameron would be required for cross-examination on her s 133 report. The Court was advised that no further expert evidence was required.
[19] At a further telephone conference, the Judge directed that no further affidavits were to be filed without leave of the Court. In the second Family Court judgment, Judge McHardy notes that at the time, no issue was raised about this particular direction.10
[20] Then, at the beginning of May 2014, the appellant sought an adjournment of the proceedings. This was opposed by the respondent; the lawyer for the child adopted a neutral position. The grounds for seeking the adjournment were medical grounds relating to the appellant recovering from surgery, and legal grounds relating to the need for new evidence, as well as an extension of legal aid to cover the cost of engaging an expert on domestic violence for the purposes of providing the new evidence and for Dr Cameron’s notes to be viewed by the expert to be engaged.
[21] Judge McHardy refused the adjournment. He was concerned about delay. There had already been delay, for reasons that I see no need to now go into, between the s 60 hearing in 2013 and the second-stage hearing, which was not scheduled to
be heard until late May 2014.
9 See Minute of Judge McHardy dated 12 November 2013 at [3].
10 Way v Lowe, above n 3, at [10].
[22] Counsel for the appellant argued that the major reform that had taken place since the first hearing in September 2013 necessitated a fresh look involving a broad enquiry of a very different nature to that which was initially envisaged. Hence, the appellant’s wish to provide further evidence from an expert on the question of whether J was safe in the respondent’s care. The proposed evidence was to cover topics such as how perpetrators of violence behave, including psychologically abusive behaviour, even during periods when they are not exhibiting physical/overt violence.
[23] In the Minute of 19 May 2014 in which Judge McHardy gave reasons for refusing to adjourn the hearing, he referred to the appellant having engaged an expert, April Trenberth. The appellant had complained that Ms Trenberth, who was providing advice on the cross-examination of Ms Cameron, could not get access to Ms Cameron’s notes. In this regard, the lawyer for the child accepted the role of enquiring of Ms Cameron if her notes could be obtained.
[24] The Judge was critical of the appellant’s request for an adjournment. The Judge took the view that nothing had changed since the judicial conference in November 2013 when the appellant had indicated no further expert evidence was to be called. The Judge was of the view that the scope of the enquiry had not significantly changed, and he was concerned as to the likely further delay that would be caused by the appellant bringing further expert evidence before the Court. He found the delay was not justified, given the requirements of the legislation that matters of this type be dealt with in a timely fashion from the child’s perspective.
[25] One of the key questions in this appeal will be whether the procedures followed in the two hearings, being the timing of Ms Cameron’s report and the impact of the amending legislation on the scope of the enquiry, have so affected the outcome that the appeal should be allowed, with the matter being sent back to the Family Court for a rehearing.
Family Court judgment on substantive issues
[26] In the s 60 hearing, the appellant made allegations of 12 specific incidents of s 58 violence by the respondent. One of those allegations involved violence directed against J. The remainder were alleged acts of violence towards the appellant.
[27] Judge McHardy did not find the appellant to be a convincing witness. He made a number of general comments that were dismissive of her reliability and credibility. Regarding the alleged act of violence towards J, the Judge referred to the general criticisms he had made of the appellant’s evidence, and then found that he was “not prepared to make any finding that this incident occurred”.11
[28] The allegation of violence to J was that the respondent had whipped J with “alarming force with some pyjama leggings”. The appellant described J as “howling and being very distressed” by this event. She expressed concern that this was the sort of thing that may reoccur if J was placed in the sole care of the respondent.12
[29] On the other hand, the respondent denied the incident. His evidence was that he had never been violent or even angry towards J. He described J as his highest priority and stated he only wanted what was in J’s best interest.
[30] The Judge found the respondent to be someone who sought to minimise J’s exposure to any of the arguments or relationship problems that occurred between the respondent and the appellant. The Judge did not believe the pyjama legging incident had taken place. He found the appellant’s evidence “lacks credibility”.13 The Judge based this view on the fact that the appellant had continued to allow the respondent to have unsupervised contact with J for a limited period of time after the alleged event.
[31] Regarding the incidents of alleged s 58 violence by the respondent to the appellant, the Judge was not satisfied that some of them had occurred. With others,
he found that they had occurred but not in the way that the appellant had described.
11 Way v Lowe, above n 2, at [76].
12 At [42].
13 At [76].
Instead, he accepted the respondent’s evidence, which had sought to minimise the seriousness of those events. However, this is not to say that the Judge did not accept that there had been some s 58 violence. A summary of his views can be found in the judgment:
[77] Given my findings, in respect to these matters, I am not left with the impression that we are here dealing with a respondent who has a significant anger management problem. The [appellant’s] behaviour towards the respondent would suggest that she in fact resorts to violence against him more so than he has against her. It is apparent from the evidence that I have heard that this is a seriously dysfunctional relationship, however the evidence does not justify the [appellant] now insisting that she has been the victim of sinister, power control violence from the respondent. The evidence simply does not meet the threshold for such a finding. There has been unacceptable domestic violence from the respondent to the [appellant], this taking the form of the punch that occurred in June 2006 and the front door on 7 May 2011. (emphasis added)
[78] It is apparent from the evidence that there has been physical violence meted out from the [appellant] to the respondent. However these have not been particularised and the Court has been given insufficient detail to make findings on each form of violence that has been alleged. However, there is sufficient evidence, including an admission by the [appellant] herself to indicate that she also falls into the category of a violent person. She is not a victim who is simply defending herself. This is a situation where the nature of the relationship was such that each party has become significantly angry with the other over the period of the relationship. This has resulted in incidents which have involved angry verbal arguments between the parties.
[32] Later, at [80], the Judge found as follows:
[80] It became obvious during the [appellant’s] evidence that she has rationalised the dysfunction that existed in the parties’ relationship on the basis that she was dealing with a violent person. She has claimed validation of this by referring to information and advice she has received from professionals, who have in the main only heard her side of the story. My findings have been that there has been physical violence in this relationship. The respondent has been physically violence to the [appellant] and vice versa. There is no evidence to justify the conclusion that the [appellant] sought from the Court. The violence that the respondent indulged in was clearly situational. There now needs to be a safety assessment carried out which is required by s 61 if that is still considered to be necessary given the findings in this decision. (emphasis added)
[33] Following the second hearing, at which the risk assessment took place, the Judge ordered a parallel parenting regime, with each parent having shared care of J. It is important to note that at the second hearing, Ms Cameron gave evidence. Further, that in preparation for giving her evidence she: (a) read the notes of
evidence from the s 60 hearing; (b) read the lawyer for the child’s report dated
23 May 2014; and (c) read the judgment on the s 60 hearing. Thus, if there were findings in the s 60 judgment that might have impacted on the safety assessment that she gave in her s 133 report, she had the means and the opportunity to express a view that differed from the view expressed in her s 133 report.
[34] At the second hearing, the Judge was persuaded by the evidence of the respondent and Ms Cameron. The Judge continued with his rejection of the appellant’s evidence. It is worth setting out the key paragraphs of his decision in full:
[85] I do not accept the self analysis that [the appellant] has relied upon in coming to the view that she now professes. I prefer the evidence of Ms Cameron in respect of the issues that she has addressed in her brief. I have already made findings in relation to the various allegations that have been made by [the appellant] against [the respondent]. I have heard nothing from Ms Cameron in this hearing which would change the preliminary view that I had formed having heard both parties in relation to the s 60 hearing.
[86] There it was quite clear that there was an unhealthy relationship which did involve domestic abuse. That abuse was not one-sided. It existed in the relationship and fell into the category of situational violence. [The appellant] is never going to accept that. However the Court is required to look behind the anxiety on [the appellant’s] part. The focus has to be on what is in the best interests of [J]. This cannot be relegated behind an attempt to address [the appellant’s] anxieties. (emphasis added)
[87] Ms Cameron’s evidence is very clear – that at this time [J] needs both parents to have significant input to his life. She considers [the respondent] is ready, willing and able to carry out his obligations in that regard. The only roadblock to this has been put there by [the appellant] – the evidence demonstrates inappropriate gatekeeping on her part which she seeks to justify on the grounds that [J] would not be safe with his father.
[88] There has to be concern about the type of abuse that occurred during the parties’ relationship. That needs to be addressed by each individual by ensuring that they take appropriate counselling to address their own shortcomings. [The respondent] needs to do that. So does [the appellant]. This ultimately will improve the situation with their child. Be that as it may, there is an urgency in putting in place the type of parenting advocated for by Ms Cameron and sought by [the respondent].
Appellant’s case
[35] The appellant’s case falls under three heads: (a) a complaint about procedural
irregularities flowing from the split hearing, the way those hearings occurred and the
refusal to adjourn the hearing for a wider enquiry given the change in the legislation; (b) a challenge to the factual findings from the s 60 hearing on the alleged acts of violence; and (c) a complaint that in the s 60 judgment the Judge incorrectly characterised the nature of the violence by the respondent as situational violence, rather than to see it as the expression of an unduly controlling and coercive personality. Sitting within this last head of complaint is a further complaint that the Judge has taken the term situational violence from Ms Cameron’s report, which has led the appellant to submit that inferentially this shows that the Judge had read the s 133 report before he gave judgment in the s 60 hearing, even though he said he would not do so.
Respondent’s and lawyer for the child’s cases
[36] The respondent and the lawyer for the child argue that the Judge reached a properly formed view that was open to him to reach on the evidence that was before him. They reject the idea that there are procedural irregularities in the way that the split hearings were conducted. They refer to the Judge’s preference for the respondent’s evidence to the evidence of the appellant and argue that it is not for this Court on appeal to interfere with the Judge’s findings relating to the appellant’s credibility. As regards the Judge’s use of the term “situational violence”, they contend that this term is often used in the Family Court setting and the fact the Judge used it cannot be taken to mean he had read Ms Cameron’s report before the first hearing. They also rely on the expert opinion of Ms Cameron and the expertise of the Judge as regards the assessment of the respondent’s alleged disposition to violence. Whilst they do not contend that this Court should defer to the Family Court when it comes to the assessment of risk of violence towards a child, they contend nevertheless that this Court should recognise the specialist expertise of those who work within this specialist jurisdiction.
Analysis
Procedural irregularities
[37] It would have been better if Ms Cameron’s s 133 report had followed the s 60 hearing; that way her opinions and her s 61 risk assessment would have been based on judicial findings on whether there was any s 58 violence or not. It was less satisfactory for her to make assessments based on alternative factual scenarios given by each parent. Judicial findings do not always entail acceptance of one parent’s evidence in preference to the other’s evidence. Often the view a Judge may reach on conflicting evidence is that the truth lies somewhere between the two versions. It is hard to see how Ms Cameron could make allowance for this in her hypotheses. The direction made by Judge de Jong would have created the expectation that Ms Cameron would be opining an actual finding of violence.
[38] On the other hand, Ms Cameron’s presence as a witness at the second hearing and her preparation for this event would have given her the opportunity to re-assess and alter her opinion if she thought that appropriate. But she did not. Her opinion evidence at the second hearing did not waiver substantially from the views that she had expressed in the s 60 report. The only alteration that she acknowledged was her view that by the second hearing, which commenced on 26 May 2014, there was “now some urgency about increasing the contact that [J] had with his dad”. Thus, her evidence shows that after reviewing the material that followed her report, she clearly saw nothing that would cause her to change her view on a shared care arrangement being in J’s best interests.
[39] The fact that Ms Cameron’s report did not follow the s 60 hearing is less than satisfactory as it meant the opinions expressed therein were not based on actual findings relevant to whether there was s 58 violence or not. This was contrary to the expectation created by Judge de Jong’s direction. Further, it meant that the appellant had no knowledge before the commencement of the second hearing that Ms Cameron remained attached to her original opinion. This would have left the appellant in a position where, in principle, it was difficult, if not impossible, for her
to decide at the time when notice was necessary whether to adduce additional expert evidence or not.
[40] The form in which Ms Cameron gave evidence at the second hearing meant that insofar as the views that she expressed were based on material she had considered after she had prepared her report, those views would have taken the appellant by surprise. This is contrary to the way in which evidence is given in the Family Court. The use of affidavits and expert reports filed and served beforehand (usually in accordance with timetable directions) is to ensure that everyone concerned with a dispute is properly informed before the hearing of any evidence that is adverse to his or her case. Secondly, the advance filing and service of affidavit evidence and expert reports serves to inform a party of any need for that party to obtain additional evidence or reports. An informed choice on this topic cannot be made if the party has no notice before the hearing of the content of the case that he or she has to meet. By May 2014, the appellant had consulted an expert, Ms Trenberth. The failure to give the appellant advance notice of the views that Ms Cameron expressed at the hearing on matters following her s 133 report would have meant that the appellant was unable to obtain Ms Trenberth’s advice regarding cross-examination of this evidence from Ms Cameron.
[41] What should have happened here to rectify the fact that the report was prepared before the s 60 hearing was for Ms Cameron to prepare an updated report that took into account the subsequent material that she had read, after judgment on the s 60 hearing was delivered. Her updated report would have ensured that the appellant was informed before the second hearing of Ms Cameron’s views following consideration of that material. Such a report needed to be available to the appellant before she was required to exercise a choice on whether she would file further evidence or not. Indeed, until the appellant had the benefit of an updated report from Ms Cameron, it is difficult to see how any expert she instructed could sensibly offer any advice on whether there was room for disagreement with Ms Cameron’s views. Without an updated report, no one would have known what effect, if any, the subsequent material and the judgment on the s 60 hearing had on Ms Cameron.
[42] It follows that I am satisfied that the failure to follow the directions made by Judge de Jong as regards the s 133 report prejudiced the appellant’s ability to present her case such that she did not have a fair and proper opportunity to address, or to challenge evidence that was adverse to her case.
[43] The next procedural issue is whether the change in the legislation part way through the completion of the case in the Family Court, and the Judge’s refusal to adjourn the second hearing to enable it to proceed more broadly at some later time has denied the appellant a fair opportunity to be heard.
[44] In principle, it could be said that the division of a defended hearing into one part that considered risk of physical or sexual abuse, and a second part that considered other matters, including the risk of other forms of abuse, might result in compartmentalising the assessment of abuse, whereas a single hearing would better allow a holistic assessment of the risk of abuse to be made. This may be. The fact that Parliament has repealed ss 58 to 62 and has moved to a broad definition of abuse that essentially requires all forms of abuse to be considered in the one hearing
supports such a view.14
[45] Nonetheless, the practice of having two hearings, one to determine physical and/or sexual abuse and the other to determine other matters, was in place for some time. It was lawful at the time of the s 60 hearing. The repealed legislation did not mandate two separate hearings. Rather, it required a decision on whether there was physical or sexual abuse, and if a Judge found that there was, then, under s 60(3), he could not make orders giving the violent party contact (other than supervised contact) with the child. However, this was subject to the proviso in s 60(4) that allowed the Judge to order contact if, following an assessment under s 61, the Judge was satisfied that the child would be safe while he or she was in contact with the violent party. The framing of the legislation in this way allowed for a split hearing, but a Judge could just as readily have reached a view on the s 60 and s 61 considerations in the context of a single hearing. In such circumstances, it seems to me that if the parties agreed to two separate hearings, there can be no complaint later
about the form of the hearing, unless it can be shown that this form effectively
14 Section 5(a) of the Act implicitly defines “violence” to include all forms of violence.
denied one of the parties a fair opportunity to be heard. Here, there is nothing to show that the form of the hearing had such a detrimental effect.
[46] At a telephone case management conference on 12 November 2013, the appellant’s counsel confirmed that the appellant did not intend filing further evidence. That was the time for her to indicate that she wanted to file evidence of violence that fell outside the scope of s 58. The findings that the Judge had made under s 60 would not have precluded the appellant from filing evidence on other forms of violence. There was a further case management conference at which a direction was made that no further evidence could be filed without leave of the Court. No issue was raised by the appellant regarding that direction, nor did she seek leave of the Court to file further evidence.
[47] After the s 60 hearing in this case, there was still the opportunity to raise other forms of violence, including emotional abuse at the second hearing. Had the appellant wanted to argue that the physical abuse that the Judge did find was accompanied by emotional abuse, which in turn aggravated the physical abuse, she could have done so. She had the opportunity to file evidence to support an argument to this effect after the s 60 hearing, but she chose not to do so.
[48] Thus, the division of the hearing into two parts had no detrimental impact on the appellant’s ability to present her case. The detriment she faced was due to her having no notice of the opinions that Ms Cameron had formed subsequent to the s 60 hearing, and which she announced for the first time at the second hearing. To this extent only was the appellant’s ability to advance her case procedurally impaired.
[49] Later, in May 2014, before the hearing commenced, the appellant sought to have the hearing adjourned so that she could obtain expert opinion relevant to the risk assessment, which by then would be done in terms of s 5 of the Act. The adjournment was refused. The Judge could not see that anything had changed since November 2013 when the appellant had indicated she would not be calling any further evidence. His view in this regard is correct. The Judge was concerned about the prospect of further delay. He took into account the legislative directive that
matters regarding care of a child be dealt with in a timely fashion from the child’s
perspective.15 These were relevant considerations that carried considerable weight.
[50] I have carefully considered the reasons that the Judge gave for refusing the adjournment. I can see how he came to the decision to refuse an adjournment. The change in the legislation did not introduce any materially new enquiries. Under the former legislation, forms of violence that fell outside the definition of violence in s 58 were relevant to the assessment of risk that was undertaken under s 61. Thus, it was not as if the repeal of ss 58 to 62, and the reordering of the principles in s 5 expanded the fields of enquiry to the point where allegations of violence that the appellant could not have raised under the former legislative regime could now be raised under the new regime.
[51] The appellant did not raise the need for an updated report from Ms Cameron and how, until such a report was available, it would have been difficult for the appellant to obtain pertinent advice from another psychologist. By May 2014, the appellant had recognised that expert advice from another psychologist might be required. She had engaged Ms Trenberth to assist with the cross-examination of Ms Cameron. However, the appellant had not recognised, and therefore did not bring to the Judge’s attention, the problem that until the full extent of Ms Cameron’s opinions were disclosed to the appellant (which was not until the second hearing commenced), she was in no position to brief another psychologist.
[52] As matters then stood, the Judge’s decision to refuse an adjournment is
understandable. I see no error here.
Were the s 60 findings wrong?
[53] The first consideration must be the alleged violence by the respondent to J. The difficulty that the appellant faces here is that this was a straight out credibility contest between the appellant and the respondent, with the Judge preferring the
evidence of the respondent. In such circumstances, it is difficult for an appellate
15 Section 4(2)(a)(i) of the Act.
court to interfere with findings of credibility.16 I can see no basis for doing so here. The Judge provided a reason for preferring the respondent’s evidence to that of the appellant. This reason, which was that she had still allowed the respondent to have unsupervised contact with J, makes sense to me. If the alleged violence was of real concern to the appellant, one would have expected her, at the time, to prevent, or attempt to prevent the respondent from having unsupervised contact with J. Further, I note Ms Cameron’s opinion that if the incident of whipping J with his pyjamas did occur, it was more an example of bad parenting than violence towards the boy. If such conduct did occur, it was reprehensible, as no one should resort to treating a child in that way, however exasperating the child might be. However, for the reasons I have already stated, it is not open to me here to depart from the Judge’s finding on credibility.
[54] Regarding the alleged violence to the appellant, the Judge found that some domestic violence had occurred. The two most serious incidents were the punch by the respondent to the appellant’s ribs in June 2006, and the front door incident that resulted in a black eye for the appellant in May 2011.
[55] Contrary to the Judge, there is a third incident that I consider the appellant had proved. The appellant alleged that on the night before the family left for a holiday in Samoa, the respondent had punched a laptop that she was working on and, in doing so, broke the screen. The respondent said he had slammed the lid of the laptop down. He said that he did this in response to the appellant dropping his laptop on the ground and then standing on it.
[56] The appellant adduced evidence from her employee, [the witness’ name is redacted and will be omitted from all copies of this decision, other than the original on the Court file and the copy delivered to counsel. The witness will be referred to as “E”]. E said that on the morning that the appellant was leaving to go on a family holiday to Samoa, she rang E to say that the previous night the respondent had punched his fist through the laptop screen while she was working on it. The appellant had said the laptop was no longer working and that E was to liaise
with an IT consultant to obtain a replacement computer and to see if the files from
16 See Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].
the damaged laptop could be transferred to the new computer. E confirmed that she saw the damaged screen, which she described as completely broken.
[57] At the s 60 hearing, the respondent’s counsel submitted that the evidence of the appellant’s witnesses, including E, had no value, as those witnesses did not see any of the alleged violent incidents.17 Later, the Judge was critical of the appellant for failing to provide evidence from third parties to confirm incidents such as the “damaged laptop”.18 This suggests that either the evidence of E was implicitly rejected as unreliable, or the Judge overlooked it.
[58] If the damaged laptop is looked at in isolation, the following is clear. The respondent admitted the laptop screen was broken, but he offered a different explanation for how it came to be broken. So there is no doubt the screen was damaged. How it came to be broken was a credibility contest between the appellant and the respondent. However, for the appellant, there was the additional evidence of E.
[59] The evidence of E was not hearsay: see s 4 of the Evidence Act 2006 and the discussion in Hart v R.19 Further, it was not excluded by s 35(1) of the Evidence Act as being evidence of a previous consistent statement, as the respondent challenged the veracity of the appellant’s account of how the laptop came to be damaged. In Hart, Elias CJ stated that a denial of offending related by a complainant in evidence is an allegation of invention after the event.20 In Rongonui v R, the majority of the Supreme Court acknowledged that:21
Most defences in sexual cases involve the proposition either that the alleged offending did not occur at all or that the conduct involved was consensual. The very nature of such defences, must, at least implicitly, involve a challenge to the complainant’s veracity, on the basis of invention.
[60] The same can be said for cases involving an allegation of abuse. If the alleged abuser denies that the abuse occurred at all, or asserts that something else
17 Way v Lowe, above n 2, at [53].
18 See [56].
19 Hart v R [2010] NZSC 91, 1 NZLR 1 at [55].
20 At [13] and [18].
21 Rongonui v R [2010] NZSC 92, [2011] 1 NZLR 23 at [43].
happened in its place, such a response implicitly asserts that the evidence of the complaining party is no more than an invention.
[61] In my view, following the approach in Hart and in Rongonui, E’s evidence was relevant and admissible. Further, it not only proved the appellant’s evidence was consistent with what she had said to E the day after the incident, but it also proved the truth of this statement. The discussion in Hart makes it clear that whereas under the common law evidence of a previous consistent statement if admitted only went to prove consistency, the position under the Evidence Act is quite different. Now if evidence of a previous consistent statement is admissible, it is admissible for all purposes, which would include proof of the truth of the matter stated. The limitation that s 35(2) places on the admissibility of evidence of a previous consistent statement is relevant only to the extent of the evidence to be admitted, rather than as to its use once admitted. The limitation in s 35(2) is there to ensure that a previous consistent statement is not admitted “beyond what is
necessary to respond to the challenge to the witness’s veracity”.22
[62] Insofar as E gave evidence that the day following the laptop incident, the appellant informed her that the respondent had “punched his fist through the screen”, the admission of this evidence was necessary to meet the respondent’s challenge to the appellant’s account of events. E’s evidence was not challenged by cross- examination.
[63] Given the unchallenged evidence from E in support of the appellant’s account of events regarding the damage to the computer, I find it difficult to see how the Judge could have accepted the respondent’s account of how the appellant’s laptop came to be damaged. The Judge was wrong to do so. He was wrong to say that there was a lack of confirmation from third parties regarding the damaged laptop.23
[64] This is not to say that the Judge was wrong to find that the appellant had
earlier damaged the respondent’s laptop. She denied doing so, but it was open to the
Judge to accept the respondent’s evidence in that regard. However, even if the
22 Hart, above n 19, at [57].
appellant had acted in that way, it does not justify the respondent punching the screen of her laptop.
[65] The evidence of the damage to the laptop was evidence of physical violence towards property of the appellant, rather than to the appellant herself. Strictly speaking, it fell outside the s 60 hearing, though I note that the Judge dealt with it at that time. In any event, I consider that a proper assessment of that incident is necessary as it reveals conduct on the part of the respondent that would have been threatening, and so emotionally abusive. He was the stronger of the two persons. He had already on an earlier occasion punched the appellant in the ribs. When he punched the laptop, it would necessarily have generated fears that further punches might be delivered. This type of behaviour would have been relevant to a risk assessment under s 61, and now to the assessment to be made under s 5(a) of the Act.
[66] I have carefully considered the appellant’s arguments regarding the other allegations of violence that she made and which were rejected by Judge McHardy. The problem that she faces here is that there is no supporting evidence like there was for the damage to her laptop. The Judge gave reasons for why he preferred the respondent’s evidence to that of the appellant. He also referred to the appellant’s failure to seek the protection of a non-violence order, or to lay charges against the respondent. I do not think that such actions are necessary indicators of the presence of domestic violence, but they go some way to support its existence.
[67] I find that I am left in a position where I cannot find any proper reason to interfere with the Judge’s preference for the respondent’s evidence over that of the appellant’s evidence when it comes to the other specific allegations of violence.
The risk assessment
[68] The judgment following the second hearing recognises that the respondent has committed domestic abuse. The Judge found there had been “violence in the parties’ relationship” which had “gone both ways”.24 Thus, the Judge accepted that there was some foundation to the appellant’s claims of domestic abuse. The Judge
described the violence as “situational violence that the Court sees on a regular basis where this is an unhealthy relationship between the parties”.25 The Judge considered that they both needed to attend anger management courses.26
[69] The appellant disputes the Judge’s characterisation of the respondent’s violence as “situational” and asserts that it takes a more sinister form.
[70] One of the problems that I have found with this case is that the appellant has chosen to focus to a large degree on academic writings on violence, and she has attempted to characterise the respondent as what might commonly be described as a serious abuser. She attempted to introduce further evidence of this type on appeal
but was not permitted to do so.27 Similar argument was run in the Family Court
where there was some discussion regarding whether the respondent was demonstrating “situational violence” or “coercive and controlling violence”. The Judge described the domestic violence that he found was proved as being “situational violence”.28 He specifically rejected the appellant’s attempts to portray herself as a victim of “sinister, power control violence from the respondent”.29
[71] I find these labels and arguments that attempt to attach a particular label to the respondent, and from there to theorize as to how he will behave, a distraction. I consider that when it comes to assessing the risk of the respondent being violent towards J, the better approach is to view the actual violence that has been established on the part of the respondent, and to infer from that conduct if the respondent might pose any risk to J.
[72] There are now three proven instances of violent behaviour that was directed towards the appellant. As Ms Cameron noted in her report, “even occasional domestic violence is damaging”. As a woman, the appellant is someone who is physically weaker than the respondent. To punch someone weaker than himself as forcefully as would injure a rib is unacceptable violence, whatever might have been
the surrounding circumstances. To do so while they were in bed together was a
25 At [64].
26 At [89].
27 BLH v MNL [2014] NZHC 2429.
28 Way v Lowe, above n 3, at [64].
breach of trust. The appellant was entitled to look to the respondent to protect her from physical harm, not to hurt her in that way. This was a serious incident. So too were the circumstances in which the appellant came to get a black eye. Punching the screen of her laptop was also serious. Against the background of the earlier punch to the ribs, the incident with the laptop would have been even more than otherwise threatening, as it would have necessarily carried the implicit threat of a further punch or punches to her as well. Given the imbalance of physical power between the appellant and the respondent, his conduct was bullying.
[73] The respondent’s violence on the three occasions that have been proven
inferentially reveals the following:
(a) He does not shrink from applying physical force to someone who is physically weaker than himself and, therefore, vulnerable to him;
(b) Such violence is occasional and isolated;
(c) Such violence occurs when the respondent is exasperated with the vulnerable person to the extent that he loses control of himself so that rather than walk away from the situation, he lashes out at the target of his exasperation; and
(d)To date, this bullying behaviour has only been directed at the appellant.
[74] The concern such inferences must generate are that unless or until the respondent overcomes these violent bullying tendencies, there is a risk that he will apply them to other persons who happen to exasperate him to the extent that the appellant seems to have done. So, if J happens to exasperate the respondent beyond his breaking point, there is a risk the respondent will exhibit violent behaviour towards J. Depending on much the respondent was pushed by J, the violence could take the form of threatening conduct (emotional abuse), or, at the extreme end, physical violence to J.
[75] A further relevant factor is that the respondent does not seem to accept fully the responsibility that he bears for his conduct. Ms Cameron reported that the respondent is “inclined to minimise what has occurred (the reference to punching her only once”, and Ms Cameron noted that he blamed the appellant for the violence and expressed resentment towards her because he became violent to her.
[76] Recognition of the need for the respondent to improve his conduct was made by the Judge when he directed the respondent to participate in an anger management course.30
[77] The weight of evidence was in favour of J having increased contact with his father, and everything, bar the perceived risk of violence, pointed to the respondent being a caring and competent parent. Given the inferential assessment that I have made of the respondent, I am not sure that, for a start, I would have permitted a
2:2:5:5 arrangement that left J in the unsupervised care of the respondent for up to five days at a time. A better approach, in my view, would have been to start off with the respondent having unsupervised contact for a shorter period of time, with an eventual move to a 2:2:5:5 arrangement, if all went well.
[78] However, I am aware that the present arrangement has been running for just over six months now without, it seems, any incident. At the appeal, the lawyer for the child said she had interviewed J since the arrangement has been running, and she formed the view it was working well. In such circumstances, the Court must balance the perceived risks to the child against the other interests of the child. Those include J having a good parent-child relationship with his father. The evidence regarding the parents’ parenting skills shows each of them to be good parents. Ms Cameron described each of them as exhibiting “a highly desirable parenting style”. So, provided J does not exasperate the respondent to a point that is likely to lead to violence on the part of the respondent, all the evidence is that J will be safe with the respondent and benefit from being in the respondent’s care, as well as the care of the appellant. Against this background, the Court must weigh the risk of violence to J
against the other factors that support the present arrangement.
30 Way v Lowe, above n 3, at [89].
[79] I am loathe to interfere with an arrangement that presently appears to be working because of a fear that the respondent might some time in the future respond to J in a violent way. There is no proof that the respondent has done so in the past. The possibility of future violent behaviour is hard to predict. Apart from the violent incidents involving the appellant, the respondent has no known history of violence. Ms Cameron reported that he had no criminal convictions, no criminal peers, he is not impulsive in general, he does not usually resort to violence, he has a steady employment history, is not “generally dysregulated”, has no mental health problems or addictions, and has good family support. Ms Cameron saw those factors as reducing the risk of further violence, which goes someway to alleviate the concerns raised by the respondent’s violence to date.
[80] Also, I note that the appellant is a concerned and protective parent. If there were any suggestion of the respondent exhibiting violent tendencies towards J since he has been in the respondent’s unsupervised care, I would have expected to have heard about it. Such updating evidence could readily have been introduced in the appeal hearing.
[81] In the end, whilst I take a more serious view of the proven violence than did Judge McHardy, nonetheless, I consider that the present care arrangements should remain in place. I hold the view only because I think that given the time those arrangements have been in place, allowing them to continue is what is now in J’s best interests. I consider that J can be protected from the risk of the respondent being violent towards him through the appellant keeping a watchful eye on the situation, and promptly bringing any concern of actual violence towards J by the respondent to the attention of the Family Court.
Characterisation of violence by the Family Court
[82] I have already expressed the view that labelling violent conduct can be a distraction. Part of the appellant’s argument on appeal was that the Judge had wrongly characterised the violence of the respondent as “situational”.
[83] In using the description of situational violence, the Judge appears to have been drawing from academic categorisations of violence in the domestic setting. The danger with such categorisation, in my view, is that it can lead to a view where the perpetrator of violence and the risk he poses for the future are viewed not so much by the violent conduct that he has demonstrated to date, but by the category into which he has been placed. Also, to view violence as “situational” can carry with it the idea that in some way, the victim of the violence has contributed to the exhibition of the violence. Whilst a situation can explain how violence occurred, it cannot, in my view, be used as an excuse for violence. No matter how provoking a victim might have been, the use of violence, particularly towards a vulnerable victim, can never be tolerated.
[84] The better approach, in my view, is to assess the violence that has been proven and then to assess the likelihood of it being carried out against the subject child. The more serious the nature of the violence, the greater concern there will be when it comes to assessing risk to a child. Thus, a man who has regularly committed serious assaults in a domestic setting will be viewed more circumspectly than someone who has committed isolated acts of moderate assaults. In this regard, a punch to the body would be viewed less seriously than a blow with a weapon, or a kick to the head.
[85] Whilst I place no reliance on categorising violence, I do not consider that the
Judge’s use of such categorisation led him to the wrong result.
[86] Regarding the ancillary issue of whether the Judge’s use of the term “situational violence” shows that he read Ms Cameron’s report before the s 60 hearing, I do not consider that there is sufficient evidence to support such an allegation. It is a serious allegation to make. There is no evidence to show the term is something that was uniquely used by Ms Cameron in her report. Absent such evidence, there is nothing to show the Judge took this term from reading her report. This ground of appeal must fail.
Concluding comments
[87] I have found that in one respect, the appellant did not have a fair opportunity to be heard. I have also found that there was a further incidence of violence by the respondent. I view the respondent’s violence towards the appellant more seriously than did Judge McHardy. Nonetheless, there is nothing that would persuade me that the approach taken in the Family Court and the outcome that was reached is so wrong that this Court should allow the appeal and refer the matter back to the Family Court for rehearing.
[88] There were references in the evidence before the Family Court to violence by the appellant to the respondent. No one suggested this had any impact on whether she should have unsupervised care of J. The Judge stated in the s 60 judgment that there was evidence of violence by the appellant to the respondent, but then went on to say those incidents of violence were not particularised, and he had insufficient
detail to make findings on each form of violence alleged.31 Without such detail, and
in the absence of specific findings on particular incidents of violence, I find it hard to see how the Judge could have expressed a view on whether there was violence by the appellant. In my view, I do not see this issue as relevant to the assessment of whether the respondent poses a risk of being violent to J. I have already stated that violence on the part of the appellant cannot justify violence by the respondent towards her. Save for acts of self-defence, which was never raised by the respondent, in the domestic setting violence by one party can never justify the use of force against another.
[89] With some of the findings on whether incidents of violence occurred or not, the Judge refers to the earlier findings on credibility that he made against the appellant and the overall view that he formed of her as a witness. Since I have found that one of the incidents that the Judge rejected (the punch to the laptop screen) did in fact occur, I have considered whether this finding could go to undermine the general view that the Judge took on the appellant’s credibility. I do not think that the reversal of one finding is enough to undermine the Judge’s reasons for his overall
credibility findings. Moreover, even if I were persuaded that the appellant’s account
31 Way v Lowe, above n 2, at [78].
of all the alleged incidents of violence were correct, that would have no effect on the outcome of the appeal. All that would do is to strengthen the views I presently hold on the risk of violence the respondent might pose to J. As those presently stand, I do not, for the reasons given, see the risk as being sufficient now to warrant interfering with the present care arrangements. If my existing views were strengthened, that would not change the outcome. This could only change if I were persuaded that the totality of the alleged violence, if accepted, showed that the respondent posed an even greater risk of violence to J than I have presently found. The nature of the other alleged incidents, even if the appellant’s account were to be accepted in its entirety, would not lead me to view the respondent as posing a greater risk of violence to J than I have already found to be the case.
[90] It follows that the appeal is dismissed.
Duffy J
Counsel: J R Robertson, Auckland
Solicitors: Davenports City Law, Auckland
Holmden Horrocks, Auckland
Copy To: Appellant, Auckland
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