N v K
[2021] NZHC 2213
•27 August 2021
NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018 AND S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-000853
[2021] NZHC 2213
UNDER the Care of Children Act 2004 and Family Violence Act 2018 IN THE MATTER OF
an appeal against a decision of the Family Court at Auckland dated 13 April 2021
BETWEEN
N
AppellantAND
K
Respondent
Hearing: 3 August 2021 Counsel:
NJ Fairley for Appellant JM Gandy for Respondent SNN Singh for Children
Judgment:
27 August 2021
JUDGMENT OF DOWNS J
This judgment was delivered by me on Friday, 27 August 2021 at 11 am
pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel: Thomas & Co, Auckland. NJ Fairley, Auckland.
SNN Singh, Auckland.
N v K [2021] NZHC 2213 [27 August 2021]
The appeal
[1] Judge D A Burns made a protection order and parenting orders in favour of K.1 Her husband, N, appeals. N contends the Judge erred in finding he had inflicted family violence on K; and erred to conclude a protection order was necessary. N also contends the Judge erred to permit only supervised access to the parties’ three children: A, B and C.
[2]The Judge’s factual findings are central.
Background
[3] N and K are Fijian. Early events occurred in Fiji. N and K met there 2010, while K was still at secondary school. She was 16; he 26. The parties married two years later, 20 March 2012.2
[4] A was born 22 March 2013; B, 13 January 2015; and C, 18 February 2017. So, K was a mother of three by the age of 23.
[5] In November 2013, K obtained a domestic violence restraining order from a Fijian Court. N did not file a defence to the application for the order. However, the order was later discharged by agreement with a mutual non-molestation condition.
[6] In September 2017, N moved to New Zealand. K and the children remained in Fiji. In November 2018, K and the children joined N here.
[7] On 11 January 2020, K finally left N. I say “finally”, for, K repeatedly left N, then returned.
[8] On 28 May 2020, K obtained a temporary protection order against N and interim parenting orders, all without notice.
1 [K] v [N] [2021] NZFC 3287.
2 K says the marriage was arranged. N says otherwise.
[9] N contested the orders being made permanent, hence the hearing before Judge Burns on 24 and 25 March 2021. The Judge found for K 13 April 2021.
The competing scenarios
[10] K alleged she had been the victim of extensive family violence by N. She said this began before they married, and the children witnessed some instances. K also said N was controlling. She described this dynamic: she would leave; he and her family would urge reconciliation; she would return; and N would revert to abusive behaviours.
[11]K said N:
(a)Pressured her to marry him. K kept the relationship secret from her family. N threatened to tell them if she did not agree to see him. Their resulting marriage was arranged.
(b)Stopped her attending school on suspicion she was having affairs.
(c)Assaulted her in November 2013, after which she obtained the domestic violence restraining order in Fiji.
(d)Forced her to perform sexual acts on a disabled boy in 2014.
(e)Sexually abused her in 2016 by forcing her to have sexual intercourse without use of a condom.
(f)Openly had sexual intercourse with another woman in the family home.
(g)Was drunk at C’s birth, and abusive in the presence of nursing staff.
(h)Exercised financial control, including by providing little income while she and the children remained in Fiji.
(i)On 25–27 December 2018, assaulted her and threw out a cake she had been baking for his birthday. N later punched her in the face.
(j)In May 2019, assaulted her in front of the children while N’s mother was visiting New Zealand—and present.
(k)In July 2019, insisted she give him her mobile telephone. K removed the SIM car and threw the telephone on the floor in frustration. It bounced and hit C. N called Police even though he was aware this was an accident.
(l)On 1 January 2020, damaged the plants she was planting, “just to annoy me”. N also called Police on this occasion.
(m)On 11 January 2020, told K’s employer—who was also their neighbour—K would no longer be coming to work. K called Police. They attended and issued a Police Safety Order.
[12] Between 11 and 15 January 2020, K lived with her neighbour, Ms C. The children remained next door with N. K then took the children to Women’s Refuge, where she stayed until sometime in April 2020.
N’s case
[13] N denied all species of family violence. He said K’s allegations were “outright lies”.3
[14] N acknowledged some aspects of events described by K but offered a competing scenario. Two examples suffice. N said there was a cake incident (see [11(i)]). However, N said K threw out the cake she had been baking as she had forgotten it was in the oven, and it burned. K then hit C in frustration. N also acknowledged an incident in the garden (see [11(l)]) but said he did not want to help with the gardening that day. The children damaged the plants. K then swore at them.
3 N said no pressure was placed on K to marry him, and their marriage was not arranged.
[15] As will be apparent, N said K was a volatile mother who frequently resorted to physical discipline. N said he and K often argued about her (poor) parenting. N was categorical he never inflicted family violence.
[16] N’s theory of the case was that K fabricated family violence to obtain a domestic violence visa or refugee visa, thereby enabling her to remain in New Zealand when she might otherwise have had to return to Fiji.
[17] N adduced evidence from eight other witnesses, including K’s father, brother, and sister; and the neighbour, Ms C.
Section 132 reports
[18] Section 132 of the Care of Children Act 2004 requires the Chief Executive of Oranga Tamariki to report on a parenting application. The Judge had two such reports from Tarryn Skilling. Ms Skilling supported K’s application.
[19]Ms Skilling was cross-examined at the hearing.
The Judge’s decision
[20] The Judge considered the differences between the competing scenarios so great it followed “one of the parties has lied”.4
[21] The Judge accepted K’s evidence and rejected N’s “in most respects”. The Judge concluded N “has lied to the Court and ... lacks insight into his own behaviour”.5
[22]The Judge said a host of factors supported these conclusions:
(a)The age disparity between the parties; K’s many attempts to leave N; and pressure from her family “to reconcile”.6
(b)Police attendances at the home, most of which were at K’s behest.
4 [K] v [N], above n 1, at [12].
5 At [17].
6 At [17].
(c)K’s “very clear recall” of events.7
(d)N’s patronising attitude in relation to K. The Judge noted N repeatedly answered cross-examination questions by saying he had to remind K of what she had to do in relation to the children. The Judge considered N’s “words and actions indicated … he treated her like an employee rather than a partner and wife”.8
(e)Correspondence, most notably, an email from N to K, was consistent with the dynamic articulated by K.
(f)N acknowledged frequently leaving K with care of the children while he drank kava with his friends.
(g)Ms Skilling’s reports supported K’s account.
(h)So too, family violence reports made by Police.9
[23] The Judge placed little weight on the other evidence called by N. Ms C was not made available for cross-examination and technological difficulties prevented cross-examination of several of the witnesses who lived in Fiji. Those that were cross-examined said they wanted the parties to reconcile. The Judge considered “they gave that evidence with that objective in mind”.10
[24] The Judge held a protection order was necessary given N’s “lack of insight” and risk he would “continue to harass” K.11
[25] The Judge granted K custody of the children. He permitted N supervised access. The Judge was satisfied K was parenting well; the children were being cared for; and supervised access was appropriate to prevent the parties from coming into contact, in turn risking further family violence. The Judge said he would review the
7 [K] v [N], above n 1, at [17].
8 At [17].
9 At [32]–[39].
10 At [19].
11 At [41].
position once N had completed courses in relation to both family violence and parenting.
Principle
[26] Protection orders are governed by the Family Violence Act 2018.12 The key provision is s 79, which reads:
Requirements for making of protection order
The court may make a protection order if it is satisfied that—
(a) the respondent has inflicted, or is inflicting, family 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, a child of the applicant’s family, or both.
[27] The definition of “family violence” is extensive.13 “Violence” means physical abuse; sexual abuse; psychological abuse or some combination of the three.
Psychological abuse is extensively defined too.14
[28] A single act may constitute abuse; and a number of acts that form a pattern of behaviour may amount to abuse even if the acts, viewed in isolation, appear minor or trivial.15 The Court must consider the respondent’s perception and effect of the behaviour on the respondent.16
[29]Section 171 of the Act provides:
Standard of proof
This section applies in any proceedings under this Act (other than criminal proceedings).
Every question of fact arising must be decided on the balance of probabilities.
[30] This section implies a Court may make a protection order only if satisfied on the balance of probabilities the respondent has inflicted, or is inflicting, family
12 The Act.
13 Section 9.
14 Section 11.
15 Section 10.
16 Section 83(1).
violence against the applicant; a child of the applicant’s family; or both. The section is very much like s 85 of the now repealed Domestic Violence Act 1995, the predecessor to the Act. I mention this because the leading decision of the Court of Appeal on protection orders under the Domestic Violence Act, SN v MN, records:17
[20] … The Court is only required to be satisfied that the respondent is using or has used domestic violence against the applicant. The threshold of satisfaction does not require proof to a particular standard. What is called for is the exercise of judgment by the Family Court based on all the evidence.
[31]That Court did not refer to s 85, which read:
85 Standard of proof
Every question of fact arising in any proceedings under this Act (other than criminal proceedings) must be decided on the balance of probabilities.
[32] Subsequent cases in this Court have, unsurprisingly, followed the Court of Appeal.18
[33] In Chauhan v Grewal, Judge Coyle considered the Court of Appeal’s observations in SN v MN had to be read in conjunction with s 85.19 The Judge held domestic violence had to be established on the balance of probabilities.
[34]SN v MN is not controlling of this issue because of an exceptional combination:
(a) the legislation it was concerned with—the Domestic Violence Act—has been repealed; (b) the respondent in that case took no part in the appeal, so the issue was not the subject of argument;20 and (c) the Court did not refer to the Parliamentary command directly on point.
[35] There is no way to avoid or read down s 171 of the Act, nor any reason to do either. The section means what it says. It must be respected. It follows an applicant for a restraining order must satisfy the Court on the balance of probabilities the
17 SN v MN [2017] NZCA 289, [2017] 3 NZLR 448 (footnotes omitted) (emphasis added).
18 A v G [2019] NZHC 2404, [2019] NZFLR 195 at [20(a)]; and Holland v Webster [2019] NZHC 616, [2018] NZFLR 1015 at [35]–[38].
19 Chauhan v Grewal [2017] NZFC 8738, [2017] NZFLR 986 at [8].
20 SN v MN, above n 17, at [3].
respondent has inflicted, or is inflicting, family violence against the applicant; a child of the applicant’s family; or both.
[36] This leaves the operation of s 171 in relation to necessity. Must the Court be satisfied on the balance of probabilities an order is necessary? Or, is it sufficient the Court is satisfied an order is necessary; “satisfied” connoting no standard of proof and entailing no more than the “required affirmative conclusion”?21 I hold the latter. It is awkward to consider something more likely than not necessary. And, tellingly, s 171 applies only to questions of fact. Whether an order is necessary is not really a question of fact; rather, it is a matter of judgment.
Appellate principle
[37] An appeal in this context is a rehearing.22 So, the principles in Austin, Nichols & Co Inc v Stichting Lodestar apply.23 That case affirms an appellate Court’s obligation to form its own view on the merits of an appeal, but as the Court of Appeal has observed, “two fundamentals remain constant”:24
First, it is still axiomatic that the appellant bears the onus of persuading the appeal Court to reach a different conclusion. Of necessity, in discharging that onus the appellant must identify the respects in which the judgment under appeal is said to be in error.
Second, it is also axiomatic that in determining whether the judgment was wrong the appellate Court will take into account any particular advantages enjoyed by the trial Court. The advantages possessed by a trial Judge in determining questions of fact are obvious, especially where assessments of credibility and reliability are involved. The trial Judge gets to see and hear the witnesses, and is able to evaluate the strength of the evidence as it progressively unfolds within the context of a trial as a whole.
[38] In Austin, Nichols, the Supreme Court observed an appellate Court should exercise caution when considering challenges to credibility findings.25
21 Z v Dental Complaints Assessment Committee [2009] NZSC 55, [2009] 1 NZLR 1 at [26].
22 So too the parenting order appeal; see SN v MN, above n 17, at [46]; and Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31]–[33].
23 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
24 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30]–[31].
25 Austin, Nichols & Co v Stichting Lodestar, above n 23, at [13].
Analysis: the protection order
Was the Judge wrong to find N inflicted family violence against K?
[39] On behalf of N, Ms Fairley contends the answer to this question is yes. Ms Fairley raises several points. I address each, then approach the question holistically.
LN’s evidence
[40] LN was a friend of K in Fiji. In 2015, LN lived with K, N, and the children for six months. LN said K repeatedly hit the children, to the extent she intervened. LN also said she saw K “with a male friend”, and K “begged her” not to tell N about the encounter. LN also commented favourably on N. She described him as “a very hardworking father” who “tries to provide well for [K]”. K said this testimony was untrue and she had not seen LN since 2017.
[41] Ms Fairley contends the Judge “failed to consider [LN’s] evidence [K] repeatedly assaulted the children”.
[42]The Judge said this about LN’s evidence:26
She is critical about the applicant hitting the children and not coming home on time from her work. She is complimentary about the respondent. She is critical of the applicant’s parenting. I find that the evidence given by [LN] is out of date. She has not spent time with the parties since 2015. The shortcomings in the applicant’s parenting at that time but it is [a] long bow to draw that it is still applicable to the present day particularly having regard to the enquiries made by the social worker. Most of the contents of the affidavit does not assist me in making a determination in this case.
This analysis was available for the reasons the Judge gave.
SK’s evidence
[43] SK is K’s sister. She lives in Fiji. SK swore an affidavit on behalf of N. She said:
1. I am the elder sister of [K].
26 [K] v [N], above n 1, at [23].
2. My younger sister [K] wife of [N] had called me a few times from New Zealand when she got separated from [N] in January this year, to request me to write a letter to support her in getting a visa in New Zealand. She told me she was separated from [N] and had left the kids with [N] and was living with her friend next door.
3. [K] told me to write a letter in her favour stating in the letter to lie and accuse [N] and to state that [N] had called me in Fiji and threatened that if [K] returns to Fiji that [N] will pay someone to kill [K] and the kids.
4. I was so scared to do this as it was a lie and I did not agree to do this and lie to immigration as I can get into trouble for telling lies.
5. She told me she is going to find someone better and settle down but for that she need to prove to immigration that [N] was violent to [K].
6. I did not agree to do this at first as [N] never called me and said this thing and it was a lie.
7. [K] was begging me to do it on messenger or she would have to come back to Fiji, so I wrote this message on Facebook messenger and sent it to her.
8. Later when I spoke to my husband about this he was upset as [N] had never said this to me. So I called [K] to delete this message as it wasn’t true but [K] swore at my husband and blocked me on messenger.
9. After a few days [K] unblocked me and said that she has deleted the message and she has taken the kids off [N] and she moved to women’s refuge as the immigration lawyer told her to apply under refugee visa [K] needs to have the kids with her. So she took the kids off [N] so she can get a visa in New Zealand.
10. I am writing this because I do not agree with what [K] has said which is not true and initially when she was immigrating to New Zealand she told me that once she gets permanent residence in New Zealand she will leave
[N] and claim benefit for her kids and have a good life and she won’t even have to work.
I did not tell anyone at that time because I wanted her and the kids to go to New Zealand and have a good life.
[44] K said she did not ask SK to lie for her; and did not tell SK she had been advised to apply for a refugee visa. K said SK telephoned her and told her N was threatening them, so, K asked SK to put that in a letter. K said, during the same conversation, SK said N had told her he would pay someone to kill K if she returned to Fiji. K said this conversation occurred after she left N 11 January 2020.
[45] A video link to Fiji was arranged so SK and other witnesses there could be cross-examined. However, the technology failed. The Judge considered it “unlikely”
the technology would be restored.27 He “indicated to counsel that I would give such weight to the affidavit evidence of the remaining witnesses as I saw fit”.28
[46]The Judge said this about SK’s testimony:29
She said that the applicant had asked her to provide a letter which meant that she would have to lie and she was not prepared to do so. The affidavit contains allegations which are non-specific and does not refer to factual information and is largely matters of opinion. The affidavit does not assist me in making a determination in this case.
[47] Ms Fairley contends this analysis is wrong because SK’s affidavit responds to K’s contention N had threatened to kill K should she return to Fiji. It follows the affidavit was not “non-specific”, nor replete “matters of opinion”.
[48] There is something to this criticism for the reasons Ms Fairley identifies. The probative value of SK’s evidence lies in the proposition K asked her to lie about N perpetuating family violence. And, that proposition supported N’s case. However, it is far from obvious why K would explicitly ask a family member to lie for her given her family supported N and the marriage enduring.
[49] K’s testimony also addressed SK’s. K said N helped SK’s family financially and, when she met N 5 May 2020, he told her he had sent money to SK’s husband. K said, “I am therefore not surprised that she has made an affidavit against me”.
[50] A significant process point arises too. The Family Court is an all-evidence court, by which I mean it may receive “any evidence, whether or not admissible under the Evidence Act 2006, that the Court considers may assist it to determine the proceeding”.30 SK’s evidence constituted a hearsay statement as it was offered to prove the truth of what she said in circumstances where she was not a witness—a witness being a person who gives evidence and is able to be cross-examined in a proceeding.31 It is all but certain SK’s evidence would not constitute an admissible
27 [K] v [N], above n 1, at [9].
28 At [9].
29 At [25].
30 Family Court Act 1980, s 12A(4).
31 Evidence Act 2006, s 4(1) definition of “hearsay statement” and “witness”.
hearsay statement under the Evidence Act.32 So, admission depended on the Judge considering the evidence might assist determination of the proceeding.
[51] The Judge presumably considered this (modest) test met. But, had the Judge placed significant weight on SK’s evidence, K would be entitled to complain of unfairness, for, she was not able to test SK’s evidence in cross-examination. No one appears to have sought an adjournment until the technology worked. And, no one appears to have contended the Judge should approach things differently. Given all this, it is not clear how the Judge could have done other than what he did, beyond granting an adjournment, which no one seems to have sought or wanted.
[52] Ms Fairley does not contend the Judge erred by not adjourning the hearing. Her complaint is that SK’s evidence should have been given more weight even though SK could not be cross-examined. But, as observed, this risked manifest unfairness to K.
Ms C’s evidence
[53] Ms C was a neighbour to the parties and K’s friend and employer. As will be recalled, K stayed with Ms C for several days when she left N 11 January 2020 (K then went to Women’s Refuge with the children).
[54] Ms C swore a five-page affidavit on behalf of N. Some aspects helped K’s case, but some favoured N’s, including the visa theory. In brief, Ms C said K was a poor parent; on 11 January 2020, K told her she would “look for a man to do her partnership visa” and asked Ms C if she knew anyone who wanted to “settled down” [sic]. Ms C said K told her she needed to prove her husband is violent to her and the children to obtain a “refugee visa”. And, Ms C implied K misled her doctor that N has assaulted her to the face when the real cause was a mere nosebleed.33
[55] K disputed the aspects of Ms C’s evidence that adversely reflected on her credibility. She said Ms C became angry with her because she could no longer work
32 Evidence Act, s 18.
33 Ms C also provided support for N’s account in relation to events of 23 May 2020, which concerned a van.
for her once she went to Women’s Refuge. K also said Ms C suggested she reconcile with N. When K refused, Ms C “got angry with me”. K said she was grateful for the help Ms C provided her but sad “she has also turned against me”.
[56] Ms C lives in Auckland. She, however, was not made available for cross- examination.34 The Judge dealt with her evidence this way:35
I put little weight on this affidavit because the deponent and the applicant appear to have fallen out. I am not certain how much objective weight can be given to the affidavit. The deponent was not made available for cross- examination. A lot of the affidavit is in relation to the parenting by the applicant and issues of disorganisation. It does corroborate the attitudinal issues of the respondent particularly relating to the applicant working. It does reinforce the control issues. She referred to the van incident. Again the affidavit contains considerable opinion evidence and I put little weight on its contents.
[57] Ms Fairley contends the Judge’s approach overlooked the various aspects of Ms C’s evidence that undermined K’s credibility, especially the visa theory. It is thus necessary to review the evidence on this topic. I begin with what K said about visas in her reply affidavit:
44. My visa is not dependent on the children and I am not using them in any way. I had no control over the Respondent, and he was free to file an application if he wanted. He has used Court proceedings to bargain with me to get what he wanted in the past and was doing this again. The Respondent told me that he was paying $300 an hour to his lawyer and if I returned, we could save the money for the children.
45. It was not my intention to file anything against the Respondent until I needed it. Otherwise, I would have filed these proceedings as soon as I left him. I was genuinely scared of what the Respondent would do, and this was the reason I filed the applications.
46. The only reason I have filed an application for protection order is for my safety. This is not for immigration purposes. The Respondent is on a work visa himself and I am therefore not eligible for a domestic violence visa in New Zealand. The Respondent’s allegations are untrue.
47. I have left the Respondent due to domestic violence in the past and this was the reason this time as well. I have no wish to prevent the Respondent from having safe contact with the children. I do want to ensure that he does not question them about me or teach them wrong things about me.
34 Ms Puckree was trial counsel for N and observed the appeal. I asked her why Ms C was not made available for cross-examination. Ms Puckree said Ms C asked for an AVL link; “lots of confusion” meant this was not put in place; and attempts were made to contact Ms C.
35 [K] v [N], above n 1, at [28].
….
87. It is ... true [Ms C] got me in touch with a lawyer and they told me that I was not eligible for a domestic violence visa. Nobody told me that I had to have the children to get a visa.
[58]K was cross-examined on this topic:
Q. Good morning [K]. I am counsel for [N]. I am going to start with questions relating to when you separated from [N] in January 2020. So on the 11th of January you moved out of the family home and you stayed with your neighbour [Ms C], is that correct?
A. Yes.
Q. You stated in your affidavit of October 2020, which is on page 68, that you were told that you were not eligible for a domestic violence visa. That’s correct?
A. I beg your pardon?
Q. So in your affidavit, October 2020, paragraph 87, you stated that you were not – well did you visit a immigration lawyer after you left your family home, after you separated from [N]?
A. Yes, my ex-boss, she took me.
Q. And when was that?
A. That was on the, 14th, 13 of January.
Q. Yes so did the lawyer tell you that you were not eligible for a domestic violence visa?
A. No, she didn’t say anything like that, I was just wondering to, if I can do a visa on my own.
Q. All right, so in your affidavit then, that is page 68, paragraph 87, I’m reading it off your affidavit: “It is also true that [Ms C] got me in touch with a lawyer and they told me I was not eligible for a domestic violence visa.” So that is what you’ve stated in your affidavit.
A. She just took me for a consult, consultant, type of consultant to the lawyer, she wanted to know can the lawyer do for me and so like she took me to the immigration lawyer. She just wanted to know if I’m eligible for that or not. So that’s what I said. That’s what she spoke to the lawyer, if I’m eligible or not, so and the rest of things, like the lawyer said I’m not eligible for that and otherwise I can do some of other jobs that can be like having my own dependant visa.
Q. So did they discuss all options with you, did the lawyer discuss all your immigration options?
A. No.
Q. So the lawyer did not discuss a refugee visa with you?
A. No.
Q. So [K], there are two witnesses that has provided affidavits as well as they will be testifying to it, that you received advice, that you told them you received advice from a lawyer to lodge a refugee visa?
A. No.
Q. No? So if I refer to page 149, and look at paragraph 3, this is the affidavit of [SK] (inaudible 10:24:01) [K]. Sorry your Honour we do have a problem with that, the page is not too clear.
...
Q. Yes. I am referring to paragraph 9, [K] and [SK] states: “after a few days,
[K] unblocked me and said that she deleted the message, and she has taken the kids off [N] and moved to Women’s Refuge as the immigration lawyer told her to apply under refugee visa. [K] needs to have the kids with her”. So are you saying that you did not tell [K], [SK], that you were advised to apply for a refugee visa?
A. No.
Q. And also the other witness, [Ms C], in her affidavit, that’s on page 135 in paragraph 13. So is [Ms C] the person that went with you to have a meeting with the Immigration lawyer, is that correct?
A. Yes.
Q. So in the affidavit on page 135 paragraph 13, [Ms C] states: “we came home and [K] called a lawyer on the number, and she told [K] that she needs to have the kids with her if she wants to lodge under the refugee visa.” So is [Ms C] also not being truthful in her affidavit?
A. After I had spoken to the lawyer at Henderson, the first lawyer, so there’s the time I spoke to her and then that’s all I – after I had spoken. And whatever she is saying over here, that’s not correct.
Q. Right. So these two witnesses are telling lies. So did you ask both [Ms C] and [SK] to tell lies to Immigration on your behalf?
A. No.
Q. So on page 36 of [Ms C’s] affidavit, where she said – this is paragraph 16, midway, she says “she”, that’s referring to you, [K], she says: “she also texted me if I can help her fill out paperwork for a visa and also give [AS]
– her husband was violent and often hit her. I told I can help as a friend but I cannot lie about things that I haven’t seen with my eyes.” So are you saying that you did not ask [Ms C] to provide a letter accusing N of being violent against you?
A. I just asked her, whatever happened between us on January 11 and before that whatever [N] was doing to me, I just told her to write that letter for me. There was – everything she had seen.
Q. So on January 11th, did [N] – was he violent with you?
A. Yeah, he slapped me in the morning.
Q. And did, slap, where were you at that time?
A. I was near the kitchen.
Q. And was [Ms C] there?
A. No.
Q. So she did not see that?
A. No.
Q. [SK], in her affidavit on page 149, said that in paragraph 3, she states that “[K] told me to write a letter in her favour, stating in the letter to lie and accuse [N] and to state that [N] had called me in Fiji and threatened that if [K] returns to Fiji, that [N] will pay somebody to kill [K] and the kids”.
A. Actually, [SK], she called me and she told that [N] had – is threatening them through calls. So I told her to give me a written letter.
...
Q. So, isn’t it true that [N] was the main applicant in your immigration visa for the family?
A. Yes.
Q. And his visa was based on his work?
A. Yep.
Q. He needed to work to continue to hold that visa for, well the whole family to hold their visa, is that correct?
A. Yes.
Q. So on the 11th of January, you asked the – well you wanted the kids to be in [N’s] care. Did the police ask you to take the children into your care?
A. Yes.
Q. But you had refused; you did say that. So did the police contact you again on Tuesday the 14th of January to ask for you to help with the care of the children?
A. They told me and they said that [N] has told me to come back home to look after the kids because he has to go to work.
Q. So they did not tell you that or you didn’t know that [N] was sick on the Tuesday and was unable to take care of the children?
A. No.
Q. So what were you told about the children then? What did the police tell you about the children?
A. The police just called me and they said that [N] told me to come back home to look after the kids because he needs to go to work.
Q. So there was a police safety order in place, right?
A. Yep.
Q. And that was until the 16th of January?
A. Yes.
Q. So on the 14th, [N] phoned the police and told the police he wants you back home?
A. Yes.
Q. In spite of the safety order?
A. Yes.
Q. It is [N’s] evidence that he did contact the police and asked them to convey a message to you that he needed help with the children but you had refused. What do you say about that?
A. Because there was safety order so I couldn’t go back to him.
Q. Right, so –
A. And if I’m going back to him, he’ll do the same thing to me, again.
Q. So when did you – so you did say that you had gone and got immigration advice on the, was it the 14th of January?
A. 13th.
Q. 13th January.
A. 13/14.
Q. Right. And so when did you take the children away from [N]?
A. It was on the 15th – on the 13th of – on the 13th of January, it was my son’s birthday.
Q. Right.
A. And I was not available with them that day because I was still having that safety order. So on the 15th of January, my older son – my younger son,
he came only next door so I hugged him and I kissed him and then I spoke to my oldest one, that why is [B] crying so he said that Dad has slapped him. And then after that, I went to the police station.
Q. And that was on what day?
A. 15th of January.
Q. So this had nothing to do with the advice that you received from Immigration, your immigration lawyer?
A. Mmm.
Q. So you claimed that [N] has harassed you constantly in the month of May. And you wanted him to leave you alone. But didn’t you contact him on 5 May?
A. I agree I had contacted him because our small son he was sick and then he was transferred to Auckland Hospital so I called [N] to discuss about the payments to be done, the fees, because I was not working at that time.
...
[59] So, K’s position was that she was told she was not eligible for a domestic violence visa; not told she needed to have custody of the children to obtain any form of visa; and that she did not discuss the possibility of a refugee visa with a lawyer. But, Ms Skilling’s report says:
[K] and the children were previously under [N’s] visa. While in refuge, she was able to get them removed from this visa and is now on her own work visa while the children are on student visas until June 2021. She is currently working with her lawyer to apply for a domestic violence visa.
And, K said in her reply affidavit she agreed with the report.
[60] Ms Fairley says, given all this, the Judge was wrong to conclude K was a credible witness.
[61] The evidence in relation to the visa theory is, frankly, something of a mess. In part, this is because K was not cross-examined in relation to what she said to Ms Skilling about a domestic violence visa (notwithstanding the obligation to put the case).36 That said, K was clear she had not fabricated evidence for an ulterior purpose. Again, it is not obvious why K would telegraph to Ms C that she was lying or going
36 Evidence Act, s 92.
to lie about N given the likelihood Ms C would pass that information to N, especially as he lived next door. The process problem at [50]–[51] arises here too, for, Ms C was not made available for cross-examination.
[62] Two other points are also important. First, and as observed, some of Ms C’s evidence supported K’s case, particularly in relation to the events of 11 January 2020. Ms C said:
On January 11 this year [N] messaged my husband Vikram that [K] can’t come into work anymore as they having lot of problems with kids. I told him I don’t have a problem but [K] doesn’t want to resign and they have to sort out as a couple. He was a bit upset and said that he will come home and talk to me.
Also on the same day [K] came home early morning knocking on my door crying saying her and [N] had an argument before he went to work. She told me he didn’t want her to go to work and she doesn’t want to live with him as she was fed up and wants to be independent. She told me she was afraid that he will come home and fight again. I told her to call her sister or parents or family here and see what they say. Her family didn’t say much so I asked her if she wanted to call police and she said yes. So she called police and once the police arrived she told them that she is afraid her husband will come and fight with her. The police told her to call them back if he comes home and fights.
When [N] came home around midday [K] came to my house and told me [N] has called me to go talk to him in his house. I told [K] to tell him to come outside in our outdoor area and talk with me and my husband calmly. When I went out [N] was already upset and told me to not employ [K] anymore as they having problems. I told [N] I can’t force anyone to leave unless they want to and [K] still wants to work. [N] got upset at me and I had to call police as I felt that I was being included in the couples argument. I told them to keep me out of it. When the police arrived [K] told police she don’t want to be with her husband and I offered her a place in my house as no one in her family helped her.
She didn’t want the kids as she said she needed a break and her husband can see how she manages kids by herself when he goes to work. The police gave the couple 5 days safety order and kids were placed with [N]. The police asked [K] if she thinks the kids will be safe with [N] and [K] replied YES.
[63] Second, the visa theory suffered an obvious flaw. K obtained the analogous Fijian domestic violence restraining order against N when there could be no suggestion she had a motive to obtain an immigration advantage.
What about the Police family harm reports?
[64] As observed, Police went to the home many times. They made reports of their visits. These were in evidence. Ms Fairley contends the reports provide “strong” support for N’s testimony; this because K did not complain to Police about N’s alleged family violence. Rather, when they attended, she (and he) said they had been arguing. N’s evidence was that nothing more ever happened. There are difficulties with this analysis.
[65] First, Ms Fairley accepted K was not cross-examined that she failed to tell Police about the alleged violence. So, again, N wishes to rely upon a point not put to K, in apparent contravention of the duty to put.37
[66] Second, and contrary to Ms Fairley’s contention, the reports provide circumstantial evidence of family violence by N:
(a)Police attended 12 July 2019. As will be recalled, N called them on this occasion after K threw her mobile phone on the ground (in response to his demand she give the telephone to him). The phone bounced and injured C. The report says C had a “very small cut on his toe”, and he was otherwise “happy and healthy”. N is described in the report as “intoxicated”. K was said to have “removed herself and gone to sit in the room”. She was “quite upset about injuring her son and ... very open about struggling with the children during the school holidays”. The report continues: “[K] was upset at first but very compliant with Police. She explained how she gets picked on by her mother-in-law as well as her husband”. N was also described as “compliant”. But, the report then says N “did seem to exaggerate his story about his wife [K]. He liked to state how he works long hours of work while his wife stays at home with their three sons”. N’s parenting expectations struck attending Police as “very unrealistic”.
37 Evidence Act, s 92.
(b)K called Police 20 September 2019. She said “her controlling husband will not let her go to work”. Police went to the home the next day. K told them the same thing. The report describes K as “clearly very upset and ... crying”. K told the Police she “has no money and ... works on Saturdays for herself so she can buy herself clothes”. Notably, the report also says: “Police believe this is quite a controlling relationship”.
(c)Police attended 11 January 2020, the day K finally left N. Their report describes N as “highly agitated when Police attended”. A Police Safety Order was issued “due to this agitation and unlikelihood that [he] would calm down”. N allegedly took exception to K’s departure, “yelling and verbally abusing her and her neighbours” and insisting K come outside because “she was his property”.38
(d)The report continues: K was “very upset about the situation and continually expressed as to how she is unhappy in the relationship and is wanting to leave the relationship. [K] doesn’t like how controlling
[N] is and doesn’t allow her to do her own things ... she is very upset and wants to leave him for good”.
(e)Police spoke to Ms C too on 11 January. She described N as “very controlling”. Ms C said she could “often hear him yelling at [K] and threatening to deport her”. Ms C told Police N expects K “to do everything for him including raising the children on her own because that is a traditional gender role in Fiji”. Ms C said N “controls the money and doesn’t let [K] buy anything” and K “got in trouble” recently for buying the children school uniforms. N expects K “to pay the bills ... even though she only works 18 hours a week”. He also “expects her to be home at all time with the kids” and has called [Ms C] to make sure [K] will be home when he goes out. Consequently, Ms C “has often had to step in with money to help feed the children as [N] refuses to do so”.
38 N denied saying this.
(f)N called Police after their 11 January intervention to say his wife should be looking after the children.
(g)On 15 January 2020, N called Police “asking where his wife and children are as he wanted to speak to them”. The officer who made the report added, N “seemed to think … because he wanted the relationship to continue … his wife is obliged to also”.
[67] Third, N breached the Police Safety Order and twice breached the temporary protection order through communications to K.39
[68] Ms Fairley contends the Police report of 1 January 2020 is inconsistent with N damaging the plants K was planting that day, because the report implies K did not tell the Police this, and instead blamed the children after “they were given the wrong instructions by their father”. K was cross-examined about this. She said:
Q. So looking at this police report, page 129, so on the top of 129 it says on the 1st of January, police were called to your old address. Now the part that’s redacted is your name, “for a verbal argument that ensued over the way that”, that would be you, [K], “speaks to him and the children. However, [K] does not feel that [N] helps out and is struggling with managing the household and the children.” The police report states that “he”, that would be [N], “stated that him and his wife had engaged in verbal arguments days’ prior to the police attending due to the way that she was yelling at him and the way she was speaking to the children. Both were mutual participants in this family episode”. So what do you make of that? According to this report, the police did not put any blame on one party, is that correct? The police report did confirm that there was an argument because of you yelling at the children, is that correct?
A. Yes.
Q. Right, but in your evidence on page 29, you have stated that [N], so: “[N] started damaging what I was planting just to annoy me, he was telling the children not to listen to me and give wrong instructions. I got so upset to stop him doing this, then he calls the police.” Now none of what you say in this affidavit is in the police report, why is that?
A. It was when the police lady, she was asking me and I told her that I was not saying anything bad to the kids, but it was between me and [N].
39 N said he accidentally emailed and telephoned K. One breach resulted in arrest. A related charge was withdrawn.
Q. All right, but the incident that you recorded in your affidavit which you obtained a protection order on, does not, is not what the police have recorded.
A. But that’s what I told the police as well.
Q. Right, is it because the incident that you recorded on 1 January did not happen, but what is recorded in the police report is what happened, [K]?
A. (No audible answer 10:51:56).
Q. Okay, the incident on – THE COURT:
Q. Are you able to answer that question?
A. (No audible answer 10:52:15).
[69] This criticism is available, but it would not be incredible if the report did not capture everything K told Police. The report was “Created by JBNZ46 [on] 03/01/2020 [at] 23:06”. I infer the report was made late on the evening of 3 January 2020, hence more than 48 hours after the events in question. The delay provides some support for the proposition K told Police N damaged the plants. In any event, the apparent inconsistency is far from telling.
Ms Skilling’s reports
[70] Ms Fairley observes Ms Skilling’s first report contains allegations of family violence not elsewhere ventilated by K. This point suffers a now familiar difficulty: while Ms Skilling was cross-examined about this, K was not.
[71] Ms Fairley’s other submission about the report is more formidable. It is best introduced by what the Judge said about Ms Skilling’s reports:40
§ The social worker Ms Skilling enquired into the full circumstances and interviewed both parties very thoroughly. She said in paragraphs 49 and 50 of her first report as follows:
49. The children appear to have experienced significant physical abuse from [N] in the form of recurrent slaps to the face. The children have also witnessed [N] physically and verbally abuse
[K] and may have been privy to the sexual abuse of [K] had she not put boundaries in place to limit their exposure by forcing [N] to sleep on the couch. [N’s] alcohol use appears to be a
40 [K] v [N], above n 1, at [17].
significant catalyst for his aggressive and violent behaviour. He has also demonstrated controlling and manipulative behaviour of [K], which she fears her boys will learn and that they will treat woman in their lives the same way. [K] has very clearly expressed wanting to break the cycle of abuse that is enmeshed within her family to provide a safer environment for her boys and to help raise them to learn that violence towards women is not okay.
50. [K’s] actions to put the safety and wellbeing of her children and herself first has come at the detriment of the relationship with her family. Her family have reportedly not only disowned her and have written affidavits against her but have threatened her life and have made it clear that she is not safe if she were to return to Fiji. Whilst her mother appears to be somewhat supportive, her ability to intervene and protect [K] and the children is likely to be limited given [K’s] report of childhood abuse by her parents. [K’s] brothers are also reported to be extremely violent and abusive towards their partners. [K] explained to me that honour killings are still prevalent in her culture, which is a risk to her life and safety.
In her second report she said in paragraph 32 as follows:
32. Given [K’s] allegations and the family harm incidents reported by the Police, I would continue to recommend N have supervised contact with the children through an external provider. This will ensure the children’s safety and also provide a professional report of observations regarding the interactions between the children and [N].
§ The social workers enquiries led her to the conclusion that there were family violence issues between the parties perpetrated by [N] and there were safety issues impacting on the children which will require continued supervision. Ms Skilling was made available for cross-examination and was able to answer questions put to her. I accept her evidence and her expertise.
[72] Ms Fairley contends: (a) Ms Skilling appears to have accepted K’s accounts of family violence; (b) Ms Skilling implicitly endorsed K as a truthful witness in her reports; and (c) the Judge relied on this endorsement as adding to the likelihood N inflicted family violence. Or as Ms Fairley puts it, the Judge “delegated” his factfinding responsibilities to Ms Skilling.
[73] On behalf of K, Mr Gandy contends the decision should not be read this way because the transcript makes clear the Judge understood Ms Skilling’s role and his own. Ms Skilling was cross-examined about what she had and had not been told by K. Ms Skilling said her role was to report based on the information she had gathered and then to make a recommendation in relation to the best interests of the children. The Judge then intervened:
Q. Right, so making the recommendations in respect of the children, you did not have the full evidence because you didn’t look at or read [N’s] affidavit dated the 8th, where –
A. I wasn’t provided with that information, no. But the information that I gathered at the time, [N] would’ve had the opportunity to express any of those concerns at the time, in terms of any further information that I may have not been privy to. But I would’ve asked him questions related to identifying what supports needed to be put in place and safety for the children.
THE COURT:
Q. In other words, your job is not to assess credibility or resolve conflicts of fact.
A. Yes.
Q. You’re here to provide information and expertise to the Court.
A. Yes, correct, thank you.
Q. Thank you.
A. Thanks for clarifying.
CROSS-EXAMINATION CONTINUES: Ms Puckree
Q. Right, so yes, you did review the police report?
A. Yes, that’s part of my job, yes.
Q. And [K’s] affidavit. And nowhere in the police report or [K’s] affidavit is there mention made of [N] throwing things at the children. But this is something that was given to you at that interview, information given to you by [K] at the interview?
A. Sorry, can you clarify. So you’re saying that the police records that we received didn’t specify that particular incident?
Q. Did not mention [N], well, throwing things at the children or physically, physically, yes, assaulting or discipling the children.
A. Okay.
[74] This exchange does not address Ms Fairley’s submission, which is directed at the Judge’s reasoning; not what the Judge said during the hearing. Moreover, this aspect of the decision appears under the heading “Credibility finding”. So, on the face of the decision, the Judge did rely on Ms Skilling’s implicit endorsement of K when determining if family violence had been established to the civil standard.
[75] As observed, the Family Court is an all-evidence court. Again, it may receive any evidence, whether or not admissible under the Evidence Act, it considers may assist it to determine the proceeding.41 It is not clear how Ms Skilling’s reports could help the Judge on questions of credibility, for, Ms Skilling did no more than speak to those involved. Ms Skilling did not witness any family violence; N did not acknowledge any such violence to Ms Skilling; and Ms Skilling’s reports do not identify any attitudes of N consistent with family violence. Ms Skilling did not purport to be expert in the field of family violence. She did not, for example, say K exhibited behaviours consistent with a victim of such violence. Absent any of these things or additional information in the reports supportive of family violence, the Judge erred in relying on them in determining the credibility contest.
[76] This, however, does not constitute reversible error for three interrelated reasons. First, the reports are not the only reason the Judge accepted K’s evidence; indeed, they comprise only one strand of a host in support of the Judge’s conclusion.
[77] Second, the other strands include evidence probative of family violence; for example, the Police family harm reports.
[78] Third, other aspects of the evidence not already mentioned reveal N as controlling, and in turn constitute circumstantial evidence of family violence:
(a)N acknowledged removing the keys to the family car so K could not drive anywhere. N said he did so because K is a poor driver, and he was worried she would hurt the children if she had an accident. Even if true, the explanation reveals N believed he was entitled to determine if his wife drove the family car.
(b)N also acknowledged telling K he would terminate her employment. N said her work was not compatible with “our timetable”. Most would consider this was not his decision to make.
(c)After K left N 11 January 2020, he:
41 Family Court Act, s 12A(4).
(i)Contacted Immigration New Zealand and said he no longer supported K remaining here.
(ii)Repeatedly contacted her, telling her to return home.
(iii)Sent K an email on 6 May 2020 in which he threatened to take the children unless she talked to him.
(iv)Sent K a series of text messages on 23 May 2020. In one, he said because K was “struggling to look after [the] kids”, he would “fight for custody”. In another, he said the children were on his visa and he would not give K “anything or money anymore”. The message ended, “im bring my kids home to me”.
(d)Evidence of financial control is strong. N came to New Zealand September 2017. K and the children arrived November 2018. In this time, N remitted only NZ$1,692.97 (in addition to paying for their airfares and visas).42
Approaching the question holistically
[79] I have also considered whether, given the totality of points made by Ms Fairley, the finding of family violence is wrong. As will be obvious, I am not persuaded it is. Much of the evidence discussed in this judgment is probative of a pattern of family violence; a pattern established and maintained by a suite of controlling behaviours on N’s part. Otherwise important contrary evidence from members of K’s family is undermined by their acknowledged preference the relationship should endure. Some of Ms C’s evidence supports N’s case, but as observed, Ms C was not made available for cross-examination. Moreover, some of Ms C’s testimony supports the conclusion of family violence. The remaining evidence adduced on behalf of N is somewhat
42 N resists this conclusion: he gave evidence he had remitted more money. This testimony is unsupported by business records. Ms Fairley observes N gave K money after she left him 11 January 2020. Related business records imply the figure is $500 from 30 January until 7 May 2020. N also paid a $243 hospital bill in relation to one of the children.
tangential. That, for example, K was allegedly not a model parent in 2015 said little about the likelihood N inflicted family violence on her.
[80] The obvious should not be overlooked either: K married when she was young and soon had three children to N. The combination made her vulnerable to abuse. So too the 10-year age gap between them. Ms Fairley contends the last feature is irrelevant, and the Judge was wrong to think otherwise. I disagree. It is one thing for spouses to be 30 and 40 years old respectively; it is another for a 16-year-old schoolgirl to commence a relationship with a 26-year-old man.
[81] This leaves one point. Ms Fairley contends the Judge erred by making a global credibility determination, rather than determining whether discrete incidents of family violence had been established. I am not persuaded of error here either. As the Judge observed, both parties could not be telling the truth.
[82] More importantly, s 79 of the Act—as to which see [26]—required the Judge to be satisfied, on the balance of probabilities, N had inflicted family violence. The provision did not require the Judge to be satisfied, on the balance of probabilities, N had inflicted a specific instance, episode, or species of family violence.
[83] This conclusion is consistent with the prophylactic nature of a protection order; its civil heritage; the breadth of legislative definitions in relation to family violence; and the phenomenon of family violence as recognised by the Act. Perhaps the most obvious aspect of the last is statutory recognition various acts forming a pattern of behaviour may amount to abuse even if those acts, viewed in isolation, appear minor or trivial.43 In short, the Act sets its face against technicality to address a serious social harm—and one all too prevalent in this country.
Was a protection order necessary?
[84] Ms Fairley contends a protection order was unnecessary because even if N had inflicted family violence, there was no history of serious breaches of the interim order.
43 The Act, s 10.
[85] The same argument was considered by the Court of Appeal in SN v MN, which, as observed, is the leading judgment on the legislative predecessor to the Act. That Court concluded the argument “especially irrelevant” to whether a protection order was necessary.44 The Court held the absence of breaches since the temporary order was made “may well show the success of the temporary order rather than the independent reformation of the violent party”.45
[86]This reasoning remains apposite.
Parenting order
[87]The Judge said this:46
Care of children
[42] There is in place at the moment an interim parenting order providing day to day care that has been in place since May 2020. The applicant has effectively had the sole care of the children since January 2020; a period of about 15 months. The social worker made enquiries into and was able to observe the children with the applicant. All indications on the evidence before the Court is that the children are progressing well and that the applicant is caring for them well. She appears to have accepted the law in New Zealand that children are not allowed to be physically disciplined. She has modified her behaviour and seems to be complying with the law. Her general wellbeing as a person has improved without the ongoing daily conflict that existed between herself and the respondent. She is maintaining employment and has organised her life around the children. I think any issues with respect to an appropriate physical discipline have been dealt with. I do not consider that she presents as a risk to the children as at the date of hearing. The social worker Ms Skilling found no care and protection issues impacting on the children. The children are all in educational institutes with the two oldest at school and the youngest at kindergarten. They appear to be presenting well and have good attendance records. There appears to be good reliability shown by the applicant. I am satisfied therefore that the interim parenting order that has been made in her favour and in place since May last year should now be made final and it is made final accordingly.
Contact
[43] Because I have made the protection order final s 5A of the Care of Children Act is triggered. It means there needs to be safety enquiry with respect to whether the respondent’s contact with the children needs to continue to be supervised or not.
44 SN v MN, above n 17, at [42].
45 At [42(a)].
46 [K] v [N], above n 1.
[44] Because of the attitudinal issues I am concerned that if there is unsupervised contact that it could expose the parties coming into contact with each other. The children could then be exposed to further conflict between their parents which I think is damaging for them. I also consider that the respondent needs to complete two courses to assist him in upskilling. The first is the Stopping Violence Programme which I think is necessary to get him to review the chauvinistic attitudes that he has demonstrated in this proceeding. He needs to understand the effect of his behaviour and try and gain some greater insight into his behaviour. The only concern I have is that he works 12 hour days and he goes to bed 8 pm so there is only a narrow window of between 3.30pm-7.30pm each day for him to complete a course. I consider that an individual programme is more likely to be appropriate for the respondent and I recommend that accordingly. This will enable him to fit it in with his work commitments but also I think it needs to be tailored to the particular circumstances of his case.
[45] I also think he needs to do a parenting course so that he can get the best information possible as to how to handle three busy active boys. Once those courses are completed I think the matter can come back before me to consider whether the supervised contact that is currently in place with Barnados can move on to unsupervised contact or possibly supervised contact by a friend or relative. I therefore direct that Ms Puckree can seek a review of the supervision condition on seven days’ notice. He will need to provide [proof] of both of those courses being completed. Therefore the contact order as presently in place for supervised contact with Barnados is to continue on the same basis as at the Court hearing. I direct that to continue until further order of the Court. I place the matter in the Registrar’s list in three months’ time to monitor the completion of the courses and see whether the matter should be placed back before the Court for hearing to see whether the situation can move to unsupervised contact.
Arguments
[88] Ms Fairley contends the Judge overlooked relevant principles in s 5 of the Care of the Children Act 2004, which reads:
5 Principles relating to child’s welfare and best interests
The principles relating to a child’s welfare and best interests are that—
(a) a child’s safety must be protected and, in particular, a child must be protected from all forms of violence (as defined in sections 9(2), 10, and 11 of the Family Violence Act 2018) from all persons, including members of the child’s family, family group, whānau, hapū, and iwi:
(b) a child’s care, development, and upbringing should be primarily the responsibility of his or her parents and guardians:
(c) a child’s care, development, and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents, guardians, and any other person having a role in his or her care under a parenting or guardianship order:
(d) a child should have continuity in his or her care, development, and upbringing:
(e) a child should continue to have a relationship with both of his or her parents, and that a child’s relationship with his or her family group, whānau, hapū, or iwi should be preserved and strengthened:
(f) a child’s identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.
[89]She argues:
74Turning to the s 5 principles, it is submitted that the evidence does not establish a safety risk for the children in either of their parents unsupervised care as long as the parties remain separated which they have been now for over 18 months.
75A care arrangement which allows for overnight unsupervised care with both parents would be in accordance with principle 5(b) that the children’s care, development, and upbringing should be primarily the responsibility of his or her parents and guardians. A parenting regime providing overnight unsupervised contact would also provide for the children’s care, development, and upbringing to be facilitated by ongoing consultation and co-operation between their parents.
76Up until the parties separation the children lived with both of their parents. It is submitted that the arrangement sought would therefore provide continuity for the children in accordance with 5(d), whilst not being a drastic change to the length of time the children have now been in their mother’s sole care.
77It is submitted that s 5(e) that the children should continue to have a relationship with both of their parents would be best met by the proposed parenting arrangement. Finally, s 5(f), that the children’s identity should be preserved and strengthened, would also best be achieved by the proposed arrangement as to allow the children to be exposed to both of their parent’s differing religions and culture.
[90] Ms Fairley emphasises K had no safety concerns for the children; indeed, she left them with N for several days when she went to Ms C’s 11 January 2020. Ms Fairley also says the Judge failed to consider the children’s views, for, A told counsel for the child he would like to see his father when he was older and misses him; and B recalled positive times with his father. Taken together, Ms Fairley argues the Judge erred in confining access to supervised access; N should be able to have the children, unsupervised, one night per week.
[91] Mr Gandy supports the Judge’s reasoning. He contends provision of supervised access recognised s 5(e), and the other principles identified by Ms Fairley had less significance given: (a) K was largely responsible for the children even when the parties were together; and (b) because of s 5A of the Act, which reads:
5A Family violence to be taken into account
(1) This section applies if—
(a)an application is made to the court for—
(i)a guardianship order under section 19 or 27; or
(ii)a direction under section 46R in relation to a guardianship dispute; or
(iii)a parenting order under section 48 (whether an interim parenting order or a final parenting order); or
(iv)a variation of a parenting order, under section 56; and
(b)1 or both of the following kinds of orders made under section 79 of the Family Violence Act 2018 is or are, or at any time has or have been, in force against 1 or more parties to the application:
(i)a temporary protection order:
(ii)a final protection order.
(2) In taking into account the principle in section 5(a), the court must have regard in particular to the following matters:
(a)whether a temporary protection order, or final protection order, is still in force:
(b)the circumstances in which that order was made:
(c)any written reasons, given by the Judge who made that order, for that Judge’s decision to make that order.
(3) In taking into account the principle in section 5(a), the court must, if practicable, have regard in particular to—
(a)all relevant convictions (if any), of 1 or more parties to the application, for an offence against section 112 of the Family Violence Act 2018 (breaching a protection order or related property order), or for any other family violence offence:
(b)all relevant safety concerns (if any) that an assessor or a service provider has notified or advised under section 185 or 204 of the Family Violence Act 2018.
(4) In this section, family violence offence means an offence—
(a)against any enactment (including the Family Violence Act 2018); and
(b)involving family violence (as defined in section 9 of that Act).
[92] Counsel for the children, Ms Singh, supports the status quo. She observes the children have experienced many dislocations. They now appear “very settled” and happy. Ms Singh considers supervised access appropriate, at least at the moment, because it reduces the risk of conflict between N and K, in turn mitigating risk of family violence.
Analysis
[93] The Judge’s conclusions about family violence, which I have upheld, meant the principles cited by Ms Fairley had limited purchase in relation to the parenting order. This is not because N inflicted family violence on the children. Rather, and as Ms Singh observes, because unsupervised access risked family violence to K, in turn compromising the children’s best interests and welfare. So, while Ms Fairley is correct to contend the regime of supervised access affects N’s relationship with the children, the short point is that such a regime is a necessary incident of the conclusion:
(a) N inflicted extensive family violence on the children’s mother and; (b) a protection order was necessary to protect her. It follows the Judge did not err.
[94] A’s and B’s remarks to Ms Singh do not advance the argument for change. While both said they enjoyed seeing their father, and B was open to seeing more of him, neither said he was unhappy nor appeared so, with existing arrangements. Furthermore, I accept Ms Singh’s submission that stability assumes particular importance given the boys’ lives thus far.
[95] Appellate intervention would also be inappropriate given the Judge contemplated reviewing the situation once N completed family violence and parenting courses. That review may still occur. In other words, the order recognises what is best for the children now.
Result
[96]The appeal is dismissed.
Costs
[97] I presume K is legally aided. But for that, I would have ordered N pay 2B scale costs.
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Downs J
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