S v R HC Auckland FP 004/1357-B/97

[2002] NZHC 318

IN THE FAMILY COURT
AT AUCKLAND FP 004/1357-B/97

BETWEEN S
Applicant

AND R
Respondent

Hearing: 28 March 2002 and 8 April 2002

Appearances: Mr R Hacking for Applicant
Ms P Cobcroft for Respondent
Mr G Harrison for the Child

Judgment: 12 April 2002 at 1.50 p.m.

RESERVED JUDGMENT OF JUDGE S J FLEMING

Solicitors:
Messrs Shief Angland, Auckland for Applicant (Mr R Hacking)
Messrs Rishworth Wall & Mathieson, Gisborne for Respondent
(Ms P Cobcroft, Barrister, Auckland)
Geoffrey Harrison Esq, Barrister, Auckland for the Child

[1] These proceedings are to determine whether a final protection order should be made and access between the parties’ son and his father.

[2] Ms R obtained a temporary protection order against her husband, Mr S, on 29 January 2002. The making of a final protection order was opposed by Mr S.

[3] Mr S applied for a definition of access with respect to the parties’ son, D, aged 6 1/2 years.

[4] A hearing was allocated on 28 March 2002. It could not be completed and was adjourned part-heard. The second day of the hearing was set down for Monday 8 April 2002.

[5] There were some matters which were able to be resolved by consent and they are:

(i) A custody order in respect of D is made in favour of Ms R with all previous interim custody orders being discharged;

(ii) An occupation order is made pursuant to s 53 of the Domestic Violence Act 1995 in respect of the home at L Street, Epsom in favour of Ms R pending further order of the Court.

(iii) Mr S would telephone his son, D, every Sunday between the hours of 5.00 pm and 6.00 pm;

(iv) Mr S is able to write letters to D;

(v) Mr S may have direct contact with D’s schoolteachers;

[6] The following specific issues remained:

(i) Whether the temporary protection order should be made final;

(ii) If so, whether Mr S should be directed to attend a programme or, alternatively, attend a programme that he can practicably attend given that he resides overseas;

(iii) If a final protection order is made to determine pursuant to s 16B whether D should have access to Mr S and, if so, whether it should be supervised. In the event it should be supervised, a determination also needed to be made as to the identity of the supervisor, the frequency and duration of access;

(iv) Access.

BACKGROUND

[7] The parties were married to each other on 24 May 1994. Ms R is a Hong Kong Chinese by birth and a New Zealand citizen. She has two children from a previous marriage. Both children are now adult.

[8] Mr S spent extensive periods overseas throughout the marriage. He is currently living in Shanghai and seems likely to remain living there until at least some time next year. He is a New Zealander.

[9] The parties are separated. There is one child of the marriage, namely D (born July 1995). He lives with his mother.

THE PROCEEDINGS

[10] Proceedings were first filed in this Court in September 1997 by Mr S. He applied then for an interim custody order in respect of D and also for an order preventing his removal from New Zealand. In support of that application, Mr S swore an affidavit in which he alleged:

(a) He had been physically attacked by Ms R over the weekend of 30 and 31 August 1997;

(b) Ms R had suffered from post-natal depression following D’s birth and was being treated with medication, namely Prozac, and that she had stopped taking that medication at around the beginning of 1997;

(c) Ms R had threatened to kill him, threatened to throw D out of a fourteenth floor window and to take D out of New Zealand so that he could not be found.

(d) He had left home with D following the alleged assault.

[11] Mr S said in his affidavit that he was anxious if possible to effect a reconciliation but, in the meantime, sought orders.

[12] Those applications were directed to proceed on notice with time being abridged for filing a defence at 48 hours.

[13] On 9 September 1997 orders were made granting Mr S’s applications subject to the filing of an affidavit of service proving service of the proceedings upon Ms R. An affidavit of service was subsequently filed. Ms R had been served with the proceedings on 5 September 1997.

[14] The Court subsequently served a copy of the interim custody order and order preventing removal upon Ms R. According to the Court record, service of these orders was effected on 30 September 1997.

[15] Mr S and Ms R then did effect a reconciliation. They resumed living together shortly after the orders were made.

[16] Ms R denied that she had ever been served with the proceedings filed by Mr S. She said in her affidavit sworn on 11 March 2002 that she was aware Mr S had obtained orders but not of the details of the allegations made. She also denied that the parties separated over that period, although in cross-examination at the hearing she acknowledged that Mr S and D had left the home and remained away from it for two weeks.

[17] The order made preventing removal of D from New Zealand was subsequently discharged by consent.

[18] The next Court proceedings were filed this year in January. They were filed not in the Auckland Court but in the Gisborne Court.

[19] Ms R applied on an ex parte basis for an order preventing removal of D from New Zealand, for interim custody of D and for temporary protection, occupation and ancillary furniture orders. Ms R alleged in the affidavit she filed in support of the applications that there had been violence during the marriage commencing first in 1998 (corrected at the hearing to 1997). She said that there had been many incidences when she had been punched about the head by her husband during arguments and that on 13 November 2001, her husband threw her on the floor in front of D and tried to strangle her.

[20] Ms R also said that in early January 2002 she had been contacted by her father-in-law, R S, who lives in Australia. She said that Mr R S was “concerned for (her) safety” and was also concerned that her husband intended to take D back to Shanghai. Mr R S arrived in New Zealand on 10 January 2002 and took Ms R to the East Coast for a holiday apparently to ensure that she was not in Auckland at the time her husband would be arriving from Shanghai. Ms R went on to say that she was afraid of her husband because of his previous violence and the warning she had received from his father.

[21] In the course of the hearing, Ms R acknowledged that she finally took the Court action that she did because of the concerns expressed by her father-in-law and her husband’s sister during a discussion that apparently took place between Mr R S and his daughter (Mr S’s sister), C. She was obviously frightened by these concerns. She was also worried about arrangements made by Mr S to obtain insurance policies on their lives.

[22] On 29 January 2002 orders were made on Ms R’s applications granting her interim custody, preventing removal of D from New Zealand and granting a temporary protection order in her favour.

[23] Subsequently Mr R S has written a note denying in general the allegations made by Ms R. Mr S indicated at the hearing that it seemed his father was reluctant to provide any evidence in affidavit form and accordingly the weight I can place on his statements is limited.

[24] Mr S immediately took steps to have the proceedings transferred to Auckland, opposed the making of final orders and obtained interim access orders. An interim access order was first made in February 2002 and a further order for access was made at the conclusion of the first day of this hearing in March 2002.

ALLEGATIONS OF VIOLENCE

[25] Although Ms R said she had been assaulted on other occasions, the evidence revolved around three incidents of violence which had allegedly occurred.

AUGUST 1997

[26] The first allegation related to the incident which took place in August 1997. I have already referred to the proceedings filed by Mr S following that event in which he alleged he had been assaulted on that occasion by Ms R.

[27] It was Ms R’s evidence in her affidavit sworn on 29 January 2002 that it was Mr S who had assaulted her rather than the other way round. She said that she had been punched “about the head at least 10 times”. There is no dispute that Ms R received medical treatment following the incident.

[28] Mr S said that during the physical struggle which had occurred, Ms R was hit by the telephone handpiece. He had not made any reference to this when he swore his affidavit on 3 September 1997. He only mentioned then that he had been assaulted by Ms R. In his subsequent evidence he said he had been concerned about the situation which had developed and had telephoned his friends, G and L. He said that Ms R started to punch and hit him while he was on the phone; that there was a struggle and during that struggle Ms R was struck with the telephone handpiece.

[29] G and L also gave evidence confirming that they had been telephoned by Mr S; that they could hear there was a serious argument taking place and were told of Ms R being hit with the handpiece by Mr S. They had immediately gone around to the home.

[30] There is no doubt that Ms R sustained an injury to her face as a result of this altercation. The evidence of both Ms R and Mr S was at complete variance. G and L, however, were able to give some independent perspective. It was their view that Ms R was assaulting Mr S rather than vice versa and they also deposed to Mr S having described over the phone to them that he had hit his wife with the telephone handpiece in the course of trying to prevent her continuing to hit him. G and L were not present during the incident. They are also clearly more friendly with Mr S than Ms R. They were, nonetheless, convincing witnesses. G, in particular, was quite firm in cross-examination. He said that it was his view Mr S was being hit because of the effect upon his voice whilst speaking on the telephone which was consistent with him being hit.

[31] G and L observed injuries to both Ms R and Mr S.

[32] I am not satisfied on the balance of probabilities that Mr S was violent to Ms R on this occasion. I will comment further on the credibility of both Mr S and Ms R subsequently in this decision. In relation to this incident, however, I note the following:

(i) It was Mr S, not Ms R who brought proceedings before the Court as a result of the incident. In those proceedings Mr S alleged that he had been assaulted by Ms R;

(ii) Ms R was served with the proceedings and the orders that were made but took no steps in relation to those proceedings which may have been expected if the incident had occurred in the way in which she now described it did;

(iii) It was Mr S who telephoned G and L during this incident;

(iv) The evidence of G and L was consistent with Mr S’s version of what occurred during the incident.

APRIL 1999

[33] The next occasion upon which an assault is specifically alleged to have taken place was in April 1999. Ms R says that her husband punched her in the head and that, again, she received medical treatment. On this occasion she reported the alleged assault to the Police and a photograph was taken of her injuries which was exhibited to one of her affidavits. There were no subsequent criminal proceedings taken. Ms R said that she did not pursue such action because of her embarrassment concerning the assault.

[34] Mr S agreed that Ms R had been injured as a result of this incident although he did not know how it had specifically occurred. He said that he had acted in self-defence after being attacked by Ms R and assumed that she was injured during the general scuffle.

[35] It is appropriate to consider issues of credibility because on this occasion the only evidence about the alleged assault (apart from the obvious injury) is the evidence of the two parties.

[36] In my view, neither party were credible witnesses.

[37] Some of Ms R’s evidence contained in her affidavits was misleading. She made no reference in her first affidavit to the involvement of counsel or the various communications that had occurred earlier that month. She made specific allegations which were demonstrated to be incorrect. For example, Ms R effectively alleged in her affidavits that she had not been served with the proceedings filed by Mr S in 1997 when clearly she had been. When pressed on that point, Ms R simply said she could not remember. She was evasive in cross-examination. She had the services of an interpreter because English is not her first language. It was clear, however, that in the main Ms R understood English very well and was able to respond to and understand questions put to her. When questions were directly related to her credibility Ms R tended to enlist the services of the interpreter.

[38] Mr S, on the other hand, similarly lacked credibility. . He was also less than fully frank in his affidavit in 1997 in that he made no mention of Ms R being injured during the scuttle. By way of further example, he denied that he had formed any extra-marital relationship with other women apart from Ms N with whom he now lives. When various items of correspondence were put to him in cross-examination. which tended to demonstrate that he was involved in at least one other extra-marital relationship, Mr S’s responses were completely unconvincing.

[39] There is no doubt that an incident occurred in April 1999 in which Ms R sustained an injury. I am not, however, convinced on the balance of probabilities that the allegation of violence has been proved. I accept that there was a physical altercation but I am not satisfied that the injury sustained by Ms R was as a result of an assault by Mr S as opposed to an injury sustained accidentally during the altercation.

NOVEMBER 2001

[40] Ms R alleges that on 13 November 2001 Mr S tried to strangle her and that D observed Mr S’s actions. Mr S denies this incident occurred at all.

[41] At this time the parties were discussing separation and the division of their property. They negotiated a handwritten agreement on 14 November 2001 with the assistance of Mr S’s mother and stepfather. I would have expected that if an incident had occurred, such as is described by Ms R the night before, then she would have made some mention of it to Mr S’s mother and/or stepfather. There is no evidence that it was ever mentioned. In addition, Ms R obtained legal advice within a few days of the alleged incident and again there is apparently no reference to any such event in correspondence.

[42] In all the circumstances, I am not satisfied this allegation has been proved on the balance of probabilities.

PROTECTION PROCEEDINGS

[43] The proceedings were based on the allegations of violence which I have found are not proved to the requisite standard. It follows that the temporary protection order should now be discharged. I note that counsel for the child had no opposition to the order being discharged, subject of course to my findings in relation to violence.

ACCESS

[44] Up until the proceedings were filed by Ms R in January 2002 these parties seemed destined to be able to resolve their disputes in a relatively non-contentious way. The change is unfortunate both from their point of view and also from D’s point of view.

[45] Mr S intends to remain living overseas until at least some time next year. It is important that D have contact with his father. That contact is not opposed by Ms R. She is supportive of contact but wants contact to be supervised by a professional access centre.

[46] Mr Harrison, on behalf of D, was opposed to any form of “institutionalised” access and submitted that, if access was to be supervised at all, it should be along the lines of the orders made earlier this year, that is, that supervision should be undertaken by the various members of the G and L family. Subject to my finding on the allegations of violence, he did not consider access should be supervised.

[47] Ms R sought that contact should be supervised for the following reasons:

(i) She alleged that Mr S had been violent towards her. I have made findings in relation to those allegations but, in any event note, as I did when I made an interim decision on access on 28 March 2002, that Ms R herself had left D in the care of his father for extended periods after she alleged acts of violence had occurred. In other words, she appeared to be satisfied that D was at no risk in the care of his father.

As I also noted in the interim decision, Ms R indicated that although she could not dismiss any concern about D’s physical safety while in the care of his father, she had no reason to believe that he would be at any risk in the care of his father.

(ii) When Mr S had had the care of D last year he had allowed the child to sleep in the same bed with him and his new partner.

(iii) She believed Mr S had encouraged D to lie about what had occurred concerning the sleeping arrangements.

[48] Mr S was questioned about what had occurred last year. It has been customary, according to the evidence, for D to sleep in the same bed as his parents. Mr S had considered that there was no reason that that practice should not continue even although he is now with a new partner. He appeared to accept at the hearing that that was probably not a wise decision.

[49] In my view, there is no need for access to be supervised. I have determined that the allegations of violence are not proved and the only other opposition put forward by Ms R relates to sleeping arrangements for D which I do not consider is a sufficient concern to require access to be supervised. I expect, however, Mr S to be more sensitive about sleeping arrangements in the future.

[50] From a practical point of view, until Mr S returns to live in New Zealand, the only appropriate physical access is likely to be during school holidays. Counsel for the child made the sensible submission that provision should be made for D to spend most of the school term holidays with his father to ensure that D can maintain and enhance his relationship with him. I agree. Mr Harrison also submitted that the introduction of overnight access should be gradual, given the recent significant difficulties that have occurred between the parties and the need to have matters progress in a sensitive way. Again, I agree.

[51] D is to have access to his father as follows:

(i) During the second term June/July school holidays from the first Monday of those school holidays through until the following Thursday week (that is, over an 11 day period). Access is to be daily between the hours of 9.00 am and 5.00 pm until the Friday when D will be in the care of his father from Friday at 9.00 am overnight and through until Saturday evening at 5.00 pm. D will have access again with his father on the following Monday and Tuesday for the day and will spend from Wednesday at 9.00 am through until Thursday at 5.00 pm in the care of his father. Otherwise he will be in the care of his mother over that holiday.

(ii) In the third school term holidays in September/October this year, D will spend time in the care of his father over the same number of days - that is from the Monday after school breaks up until the following Thursday week. On this occasion, however, he will have daily contact with his father between 9.00 am and 5.00 pm on the Monday, Tuesday and Wednesday and will then spend from Thursday at 9.00 am overnight through until Saturday at 5.00 pm in the care of his father. He will be in the care of his father again on the following Monday for the day only, and then on the Tuesday from 9.00 am overnight and through until Thursday at 5.00 pm.

(iii) During the Christmas holidays, D will spend three weeks in the care of his father. Those dates are to be negotiated between the parties with the assistance of counsel for the child. I anticipate that it may well be that D should not spend more than one week at a time in the care of his father without spending some time in the care of his mother over those first Christmas school holidays. I expect Christmas summer holiday access to be arranged by the conclusion of the third term school holidays this year. If no agreement has been reached by that time, counsel for the child should bring the matter back before the Court for orders to be made ensuring that D has access with his father over the Christmas summer holidays;

(iv) Thereafter, D is to have access with his father during every school term holidays including continuous overnight access for at least 11 days. Again the dates are to be negotiated between the parties. It may be that there will need to be further directions made in the future as to the dates of such access and I reserve leave for such an application to be brought. The situation regarding access will also change if Mr S returns to live in New Zealand.

(v) Mr S is to have telephone access with D every Sunday between the hours of 5.00 pm and 6.00 pm.

(vi) Mr S is to correspond by letter with D.

[52] In summary, the other orders I have made are:

(i) A custody order in favour of Ms R;

(ii) All existing interim custody orders are discharged;

(iii) An occupation order in respect of the home at L Street, Epsom is made in favour of Ms R pending further order of the Court;

(iv) The temporary protection order is discharged.