Huntly v Hamilton

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeDuffy J
Judgment Date18 Jul 2014
Neutral Citation[2014] NZCA 1686
Docket NumberCIV-2014-419-000225

[2014] NZCA 1686

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2014-419-000225

the Domestic Violence Act 1995

an appeal against a decision of the Family Court at Hamilton

Between
Huntly
Appellant
and
Hamilton
Respondent
Counsel:

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

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.

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE HTTP://WWW.JUSTICE.GOVT.NZ/COURTS/FAMILY- COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

This judgment was delivered by Justice Duffy on 18 July 2014 at 11.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Held: The enquiry under s14(1) DVA entailed two stages: first, a determination on whether there was or had been domestic violence; and secondly, a determination on whether a protection order was necessary.

When making a decision under s14(1)(b) DVA and under s106 COCA, the FC judge was exercising a discretion. The appeal against those decisions was to be conducted in terms of the principles in May v May. The judge's failure to articulate the reasons for his decisions, and in the case of the decision under the DVA, to even address whether a protection order was necessary or not had left the Court with little or no option but to send the matter back to the FC.

Without reasons from the court at first instance, an appellant in an appeal subject to May v May principles was poorly placed to point to any appealable errors in the exercise of the discretion. As was recognised in Lewis v Wilson & Horton Ltd, failure to give reasons meant that the “lawfulness of what is done cannot be assessed by a Court exercising supervisory jurisdiction”.

In principle, an appellate court dealing with an appeal against the exercise of a discretion might attempt to infer the reasons for the decision under appeal. However, that would depend upon whether the factual circumstances compelled a particular decision. The discretionary assessments that s14(1)(b) and s106 required were essentially contextual and factually driven. It followed that the judge who had heard and seen the witnesses was best placed to make those assessments. This was particularly so when, as here, the case was factually contentious.

Case remitted to FC.

REASONS JUDGMENT OF Duffy J

1

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.

2

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.

Background
3

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.

4

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.

Family Court decision
5

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.

6

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.

7

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.

8

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.

9

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.

10

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.

11

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.

12

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.

13

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 ...

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