RH v AH
[2021] NZHC 957
•30 April 2021
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 evidence, at times, to be so completely at odds with the evidence of the husband and daughter that the effect was chilling.”
[6] On 8 March 2019 Judge Manuel granted the final protection orders against RH. The Judge also granted the occupation and ancillary furniture orders in favour of AH.
The decision on appeal
[7] Eight months later, on 12 November 2019, RH filed an application to discharge the final protection and ancillary orders. AH and A both filed an affidavit in support of a notice of defence to RH’s application.
[8] On 11 March 2020, AH filed an application to strike-out RH’s application pursuant to r 193 of the Family Court Rules 2002. This rule provides:
193 Striking out pleading
(1) The court may order that all or part of an application or defence or other pleading be struck out if the pleading or part of it—
(a) discloses no reasonable basis for the application or defence or other pleading; or
(b) is likely to cause prejudice, embarrassment, or delay in the proceedings; or
(c) is otherwise an abuse of the court’s process.
…
[9] AH relied on r 193(1)(a) and (c) in his application, namely that there was no reasonable basis for the application to discharge and that the application was an abuse of process.
[10] Sections 109 and 110 of the Family Violence Act 2018 (the Act) govern when a protection order can be discharged. Section 110 sets out the test and criteria as follows:
110 Test and criteria for discharging protection order
(1)The court must not discharge a protection order under section 109 unless satisfied that the order is no longer necessary for the protection of any protected person.
(2)In determining whether to discharge a protection order under section 109, the court must have regard to the following matters to the extent that they are relevant in the particular case:
(a)the length of the period since the order was made:
(b)the behaviour that led to the making of the order (including its nature, its seriousness, and how often violence occurred):
(c)whether, and if so how, the respondent acknowledges the respondent’s past behaviour that led to the making of the order:
(d)whether the respondent to the order complied with required attendance at or engagement with, and achieved objectives of, any assessment or programme or prescribed services:
(e)any relevant safety concerns that an assessor or a service provider has notified or advised under section 186 or 204:
(f)any family violence or breaches of the order since it was made:
(g)the necessity for contact and the likelihood (if the order is discharged) of future contact:
(h)the risk of future family violence:
(i)whether areas of concern that led to the order are no longer evident:
(j)any protected person’s ascertained views on the application (whether it is made by, or on behalf of, the applicant or the respondent).
(3)Subsection (2) does not limit the matters to which the court may have regard in determining whether to discharge a protection order under section 109.
[11] Overall the key to a discharge of a protection order is some relevant material change in circumstances that satisfies the Court that the order is no longer necessary.
[12]The application to strike-out was heard by Judge Parsons in November 2020.
[13] At the hearing RH submitted that the application for strike-out should be dismissed and the discharge application granted as circumstances had changed since the orders were made. Her points in support of her argument were that A no longer
lived with AH, therefore he did not need continued occupation of the house and the protection order in respect of A had lapsed; AH had made A make misleading statements to the Court; AH was the perpetrator of the violence, not her; RH had completed an anger management course; RH needed to have contact with her husband to discharge her professional obligations as a trustee of the family trust; and, she submitted she had urgent accommodation needs.
[14] Judge Parsons noted that a high threshold must be met to succeed in a r 193 strike-out application. She stated that the Court must assume the facts as pleaded by RH are true, except to the extent they contradict matters already determined. The Judge emphasised that this was not an opportunity to relitigate the issues already determined and stated she would set aside any submissions to the extent that they seek to do so. For example, Judge Manuel had already rejected RH’s assertion that she was the victim of domestic violence. The Judge stated her inquiry would be focused on, assuming RH’s remaining points are true, whether there was an ongoing need for protection.
[15] The Judge held it was irrelevant that A had moved out of the home as Judge Manuel’s decision to make an occupation order was for the benefit of AH. She said AH had applied for A to be named as a specified person under the protection order pursuant to s 87(1) of the Family Violence Act 2018. The Judge noted that this provision allows a particular person or particular child to be protected under the order, as compared to s 86 which automatically includes children of the family in a protection order as long as they reside with the applicant. As A is named as a specified person pursuant to s 87, the Judge said it was irrelevant that A was over 18 and does not live with AH.
[16] The Judge found that “[RH] does not acknowledge that her past behaviour led to the making of the protection order but inverts the analysis and maintains that she is the true victim.”3 The Judge stated that this lack of insight demonstrated that there is a moderate risk of further family violence if the order was discharged. Both AH and A remain fearful of RH and believe the protection order is still necessary. The Judge
3 At [33]
concluded that there is an ongoing need for protection and no reasonable basis to discharge the application.
[17] The Judge similarly concluded that the application to discharge the protection order was an abuse of process as RH was attempting to relitigate matters already determined. The Court found requiring AH and A to go through more cross- examination after a fully defended two-day hearing had taken place not long before was unnecessary, especially where “the application is doomed to fail”.4 Therefore the Judge struck out the application to discharge the protection order.
Grounds of appeal
[18] RH appeals Judge Parsons’ decision striking out her application on the following grounds:
(a)It is a draconian step in the absence of cross-examination;
(b)The Judge erred by following Judge Manuel’s March 2019 decision even though Judge Manuel has no experience in domestic violence cases and the protection and other orders were made by AH and A misleading the Court;
(c)The Judge erred by finding that cross-examination of AH was not necessary;
(d)The Judge erred in law in the application of ss 86 and 87 of the Family Violence Act 2018;
(e)The Judge erred in law by failing to take into account the financial concerns of the trust (which owns the home) and hardship to RH, including a lack of accommodation;
4 At [39]
(f)The protection orders have been used by AH as a sword instead of a shield; and
(g)RH has successfully attended counselling since Judge Manuel’s decision.
Discussion
[19]I address each point of appeal in turn.
A draconian step and absence of cross-examination – (a) and (c)
[20]Even if the judgment were “draconian”, that is not a ground of appeal.
[21] The rules provide for strike-out in appropriate cases. Judge Parsons specifically had regard to the high standard required to strike out.
[22] Having determined to strike out the application, the standard consequence is that witnesses are not required for cross-examination. Again that is a consequence of the order made, not a basis for saying the order was wrong.
[23] There is clearly no “error” in respect of these points. My comments in this regard address both (a) and (c) of the points of appeal.
Error in following Judge Manuel’s decision – (b)
[24] Judge Parsons was correct to apply and rely on Judge Manuel’s decision. That decision had not been appealed. As Judge Parsons stated, RH cannot, under the guise of an application to discharge, relitigate issues determined by Judge Manuel (including issues of credibility). To do so is contrary to the principle of res judicata. If RH wished to challenge the Judge’s findings, she should have filed an appeal against the decision of Judge Manuel, the time for which is now long past.
[25] There is no error in this regard and it is improper of counsel to make assertions as to a Judge’s experience or otherwise.
Wrong application of s 86 and 87 of the Family Violence Act 2018 –(d)
[26] RH submits as she did before Judge Parsons that the protection order in respect of A was made pursuant to s 86 of the Act, and given A is now over 18 and no longer ordinarily or periodically resides with her father, the protection order in her favour has lapsed.
[27] Judge Manuel did not expressly record the section upon which she relied. However, I am satisfied from reading her judgment that the order was made under s 87(1)(b). Judge Parsons similarly found the orders were made under s 87. Section 86 is a deeming provision which applies automatically to all children of the family living with an applicant, regardless of their age. Nothing needs to be proven – the benefit of the protection order is automatic. Here an order was sought specifically in respect of A, and the Judge found herself satisfied of the requirements set out at s 87(3) including that a direction was necessary for A’s protection. In addition A had filed the necessary consent under s 87(3)(d). In fact, A went beyond that and expressly supported the order.
[28] The Judge therefore did not err in her decision when she concluded that the fact A is over 18 and not residing with AH is not a change in circumstance that could warrant discharging the order. That would cause the protection order in favour of A to lapse under s 86 but not under s 87.
Hardship to RH – (e)
[29] RH submits that Judge Parsons did not consider the hardship to her caused by the protection order. She submits her hardship is particularly acute in light of the Covid-19 pandemic and the housing crisis in Auckland.
[30] This submission relates to the occupation order that followed the protection order. The point has however been overtaken by advice from Mr Herbke, apparently unknown to RH until yesterday’s hearing, that the house has been sold by order of the Family Court and the net proceeds held in trust. The occupation order has therefore
lapsed and issues of relative hardship have no relevance here. They will need to be resolved in the context of the separate relationship property proceedings.
The protection orders have been used as a sword – (f)
[31] RH submits that AH’s refusal to provide her with A’s contact details is psychological abuse and is being used as a sword against RH. RH elaborated by saying that AH is using the orders to prevent her having contact with A; he “controls” A; this is an example of “male dominance over female” and it is “psychological abuse of her”.
[32]This is clearly not a ground of appeal. RH is not allowed to have contact with
A. AH is entitled to assist A in that regard. Again, the submissions RH makes are contrary to the findings of Judge Manuel, whose decision has not been appealed.
Counselling since orders made – (g)
[33] RH pressed this point in Court as another change in circumstances since the protection orders were made. It is correct that she has attended counselling and that is very much to be encouraged, but unfortunately it is clear from the evidence RH has filed and from her submissions that there is no change in RH’s attitude that would be material to her discharge application. To the contrary, RH continues to claim AH was the abuser – not her.
Conclusion
[34] Quite apart from the specific points of appeal, I consider Judge Parsons rightly ordered a strike-out of the application to discharge the protection orders. Even accepting RH’s evidence except to the extent it was clearly wrong, had the discharge application gone ahead it was destined to fail. The application also constituted an abuse of process because the majority of the argument before Judge Parsons was a repeat of RH’s case before Judge Manuel on which rulings had been made against her and not appealed. While the decision to strike out was a robust one given the provisions of s 110, I consider it appropriate.
Result
[35]The appeal is dismissed.
[36] The respondent is to file submissions on costs within seven days and the appellant to reply within a further seven days. Memoranda are not to exceed three pages, excluding intituling pages and supporting materials.
Hinton J
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