RH v AH - [2021] NZHC 957

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-00268

[2021] NZHC 957

UNDER Family Violence Act 2018 and Family Court Rules

IN THE MATTER

of Strikeout Application for Discharge of Protection Order, Occupation Order and Ancillary Furniture Order

BETWEEN

RH

Appellant

AND

AH

Respondent

Hearing: 29 April 2021

Appearances:

The Appellant in person

L M Herbke for the Respondent

Judgment:

30 April 2021

JUDGMENT OF HINTON J

This judgment was delivered by me on 30 April 2021 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/Counsel:
Norwest City Law Limited, Waimauku Barter Law, Auckland

RH v AH [2021] NZHC 957

[1] This is an appeal against a decision of Judge Parsons in the Family Court at Auckland on 12 November 2020,1 striking out an application by RH to discharge final protection and ancillary orders made against her.

Background

[2] RH and AH were married for 21 years. RH is 54 years old. AH is 76 years old. They have a 20 year old daughter together called A. RH is a self-employed solicitor. AH is retired and his sole source of income is his superannuation.

[3] RH and AH’s relationship deteriorated and they separated on 14 April 2018 following a violent incident. After this, on 16 April 2018, a temporary protection order was made in favour of AH and A against RH. The Judge also made an occupation order and ancillary furniture order in AH’s favour permitting him to live in their home in Helensville.

[4] AH and A sought final protection orders after the temporary orders lapsed. There was a two-day hearing before Judge A M Manuel where all parties gave evidence and were cross-examined. Some passages of this judgment provide context:2
“[19] …The husband and the parties’ daughter allege that they were the victims of sustained physical and psychological abuse at the hands of the wife which increased as the marriage deteriorated.

[20] The wife denies this absolutely. She says the reverse was true and that she was the sole victim of domestic violence at the hands of her husband, who used both physical and psychological abuse towards her.”

[5]The Judge goes on to state:

“[34] It is impossible to reconcile the two competing versions of events. I am obliged to choose between them.

[35] I found the evidence of the husband and daughter to be consistent, detailed and compelling. They were both credible witnesses. The daughter’s evidence was frankly heart-breaking.

[36] The wife’s evidence was not so credible. At times it was completely implausible and changed from her affidavits to when she was cross-examined.

1 RH v AH [2020] NZFC 9785.
2 AH v RH [2019] NZFC 1716.

[37] I reject her theory that the husband and daughter have presented the Court with a vast and complicated lie.

[38] It was not so much a case of the wife lacking insight as living in a parallel universe. I found the wife’s…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading RH v AH

Details

AGLC: RH v AH [2021] NZHC 957
Case: [2021] NZHC 957
Decision Date: 30 April 2021

CaseChat Overview and Summary

In the High Court of New Zealand, RH appealed the decision of Judge Parsons in the Auckland Family Court, which had struck out her application to discharge final protection, occupation, and ancillary furniture orders made against her. RH and AH, who were married for 21 years, had separated after a violent incident, following which a temporary protection order was made in favour of AH and their daughter A against RH. After the temporary orders lapsed, final protection orders were granted against RH after a two-day hearing. RH subsequently applied to discharge these orders. The court had to decide whether RH's application was frivolous or an abuse of process. The court found that the application was an abuse of process and RH's appeal was dismissed. The court found that there was no reasonable basis for the application to discharge the orders, as there had not been a material change in circumstances since they were made, and that the application was an abuse of process because RH was attempting to relitigate matters already determined. The court found that even accepting RH's evidence except to the extent it was clearly wrong, had the discharge application gone ahead it was destined to fail.

Orders