Huntly v Hamilton
| Jurisdiction | New Zealand |
| Judge | Duffy J |
| Judgment Date | 18 July 2014 |
| Neutral Citation | [2014] NZCA 1686 |
| Docket Number | CIV-2014-419-000225 |
| Court | Court of Appeal |
| Date | 18 July 2014 |
the Domestic Violence Act 1995
an appeal against a decision of the Family Court at Hamilton
[2014] NZCA 1686
CIV-2014-419-000225
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
Appeal against the making of a final protection order under s14 of the Domestic Violence Act 1995 (DVA) (Power to make protection order) and a refusal to order the return a child to Fiji pursuant to the Hague Convention — respondent alleged extensive violence and that had been kept a prisoner during marriage — counsel agreed that the Family Court Judge had not applied the two step process under s14 DVA and did not give reasons for his refusal of an order under 106 Care of Children Act 2004 (Grounds for refusal of order for return of child) — whether the Judge had erred by either failing to exercise the discretion s14 DVA or by failing to provide reasons for his decision.
R Rao for the Appellant in Proceeding CIV-2014-419-000225 C M Earl QSO for the Appellant in Proceeding CIV-2014-419-000226
A E Ashmore J I Walker for the Respondent in Proceeding CIV-2014-419-000225 and Proceeding CIV-2014-419-000226
REASONS JUDGMENT OF Duffy J
On 14 July 2014, I heard two related appeals from the Family Court sequentially. The first was an appeal against the making of a final protection order under s 14 of the Domestic Violence Act 1995; and the second was an appeal against a refusal to order the return of a young child to Fiji under s 106 of the Care of Children Act 2004.
In each appeal, the respondent was represented by the same counsel, whereas the appellant was represented by different counsel. For each appeal I delivered a result decision in which I allowed the appeal and remitted the matter back to the Family Court for rehearing. In each case I did so at the request of counsel for the parties, who recognised that with each appeal, the Family Court Judge had erred either be failing to exercise the relevant discretion under the relevant legislation, or by failing to provide reasons for his decision. I concurred with the view of counsel. My reasons now follow. Because the facts of each appeal overlap each other, I have decided to provide reasons for the disposal of each appeal in one judgment.
The appellant and the respondent are citizens of Fiji. They married on 10 December 2008. The appellant's business interests brought him to New Zealand from time to time. During one of the family's earlier visits to New Zealand, their child, S, was born in Auckland on 3 April 2013. By the time of S's birth, the respondent had obtained New Zealand residency.
The appellant and respondent made a return visit to New Zealand last year on
26 September 2013. At the time, S was five months old. They were met at Auckland Airport by the New Zealand Police (“police”) on their arrival from Fiji. The police were acting on information from the respondent that she was effectively being held captive by the appellant. The respondent left the airport separately with S, and the appellant was served with a trespass notice. The respondent then applied for a temporary protection order and an interim parenting order, which were granted. The appellant applied for the return of S to Fiji under the Hague Convention.
On 24 April 2014, Judge D R Brown delivered a decision in which he granted the respondent a final protection order and refused the appellant's request for an order directing the return of S to Fiji: A v H [2014] NZFC 3005.
Judge Brown canvassed the background facts above and stated that it was necessary to appreciate two facts about the respondent's circumstances. First, she was cast out of the marriage against her wishes and as late as the flight to Auckland on 26 September 2013, she might have turned away from the authorities that she knew or hoped would be waiting for her in Auckland and would have gone with the appellant. Secondly, it is her preference to return to Fiji with S if she is able to. Most of her family are in Fiji and she only obtained residency in New Zealand because the appellant had intended them to live here.
The respondent alleged that the appellant had often kept her locked up in the family home in Fiji. At other times, she was prohibited from leaving the house unaccompanied. It was alleged that the disintegration of their marriage culminated at a family wedding in Fiji where the appellant and the respondent had an argument. It was alleged that on the following day, the appellant's mother arrived and kept the respondent locked up in the house for 10 days. Several days after the wedding, there was a meeting between the two families where the respondent's father asked the appellant to give the respondent another chance, but the appellant refused. The respondent alleged that the appellant threatened to harm her if he could not have custody of S.
The respondent's extensive allegations of violence against the appellant were set out in the judgment. She alleged that the appellant frequently punched, kicked and slapped her. On one occasion, he assaulted the respondent in the company of her mother and while she was holding S.
On 25 December 2009, the respondent alleged that the appellant had grabbed her head and tried to force it down on the dashboard of a car. The respondent subsequently called the police. The facts are not clear, but it seems that this incident resulted in a conviction against the appellant.
The appellant denied that the respondent and S were imprisoned in the family home. He said that when they travelled to New Zealand on 26 September 2013, they were “a happy couple travelling to New Zealand”. The appellant's position was that the respondent and her family plotted to allow her to slip away to New Zealand with S. He denied the violence alleged by the respondent. He admitted that they had arguments but denied that they resulted in physical violence. The appellant denied the incident on 25 December 2009. He said that “she had made this up”. The respondent attached a medical report to her affidavit, following the alleged assault on 25 December 2009. The appellant said that the injuries sustained were from a separate occasion when the respondent was with her aunt.
Judge Brown was not convinced by the appellant's affidavits. The Judge said there was a “paper-thin feel to the appellant's position and evidence” and there was no “coherent narrative” to explain why the respondent would plot to escape with S to New Zealand: [33]. The Judge said that “there was similarly a formulaic feel to the appellant's denial of the many allegations of violence”. The Judge noted the inconsistency in the appellant's affidavit. In relation to the 25 December 2009 incident, the appellant said the respondent suffered her injuries while with her aunt. But at another paragraph, he admitted that he pushed her during that incident and pleaded guilty to assault.
Judge Brown also referred to a photograph, which showed security bars across windows of the family home of the appellant's family in Lautoka, Fiji. The appellant produced a telephone record to show that the respondent had made multiple calls during the period of her “captivity”. The Judge saw the record as supporting the respondent's account of events. On the 16 days leading up to the wedding, the respondent called the appellant on an average of four to five times a day. For the four days after the wedding, she did not call him. The respondent also produced text messages sent from the appellant to her cellphone from the night of the wedding. The Judge did not accept the appellant's defence that the respondent had manufactured the text messages. The Judge preferred the respondent's version of events.
The Judge noted that whilst he was unsure whether the respondent could have, at some stage, physically escaped during her period of “captivity”, the imprisonment was effective “because she had no realistic way of removing S from the situation”: [43].
The Judge preferred the evidence of the respondent's family, as opposed to the appellant's family. The respondent's father's evidence outlined his attempts to obtain help from the Fijian Police to stop the appellant's assaults on the respondent. The respondent's father said that each time he approached the Fijian Police, he was referred to a certain inspector with the same surname as the appellant's family and who was a friend of the appellant's family, so in the end “[the respondent's father] gave up”: [46]. It seems that the police inspector was unwilling to do anything about the situation. The Judge said that the appellant's family's evidence was weakened by the appellant's father's denial that his family and the police inspector attended the same mosque. In fact, the police inspector had said in his affidavit that they did attend the same mosque.
The Judge concluded at [51] that in Fiji, the respondent was effectively powerless. The Judge concluded at [54] that, based upon what had happened in September 2013, there was a high probability that the appellant might gain control of S, and the respondent would be unable to deal with the situation, therefore, returning S to Fiji would place S in an “intolerable situation”. At [55], the Judge found that the s 106(1)(c) defence was established. He then said:
I unhesitatingly exercise my discretion on that finding to decline to return the child to Fiji.
The Judge also held that the grounds for a protection order had been established by...
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