Huntly v Hamilton [2014] NZHC 1686 (18 July 2014)

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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.

UNDER	the Domestic Violence Act 1995
IN THE MATTER OF	an appeal against a decision of the Family Court at Hamilton
BETWEEN	HUNTLY Appellant
AND	HAMILTON Respondent _{Continued over}

Hearing:	14 July 2014
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 and J I Walker for the Respondent in Proceeding CIV-2014-419-000225 and Proceeding CIV-2014-419-000226
_Judgment:	_{18 July 2014}

This judgment was delivered by Justice Duffy on 18 July 2014 at 11.30 am, pursuant to

[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.

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.

[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

[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 “because she had no realistic way of removing S from the situation”: [43].

[14] 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.

[15] 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.

[16] The Judge also held that the grounds for a protection order had been established by the respondent.

On my view of what has happened [the respondent] has established the grounds for a Protection Order. A final protection order is therefore granted.

[18] Nothing else was said by the Judge before he decided in favour of making the final protection order and against ordering the return of the child.

(1) In this Act, domestic violence, in relation to any person, means violence against that person by any other person with whom that person is, or has been, in a domestic relationship.

(a) The respondent is using, or has used, domestic violence against the applicant, or a child of the applicant's family, or both; and

(b) The making of an order is necessary for the protection of the applicant, or a child of the applicant's family, or both.

(2) For the purposes of subsection (1)(a) of this section, a respondent who encourages another person to engage in behaviour that, if engaged in by The respondent, would amount to domestic violence against the applicant, or a child of the applicant's family, or both, is regarded as having engaged in that behaviour personally.

(3) Without limiting section 3(4)(b) of this Act or the matters that the Court may consider in determining, for the purposes of subsection (1)(b) of this section, whether the making of an order is necessary for the protection of the applicant, or a child of the applicant's family, or both, where some or all of the behaviour in respect of which the application is made appears to be minor or trivial when viewed in isolation, or appears unlikely to recur, the Court must nevertheless consider whether the behaviour forms part of a pattern of behaviour in respect of which the applicant, or a child of the applicant's family, or both, need protection.

(4) For the avoidance of doubt, an order may be made under subsection (1) of this section where the need for protection arises from the risk of domestic violence of a different type from the behaviour found to have occurred for the purposes of paragraph (a) of that subsection.

(5) Without limiting the matters that the Court may consider when determining whether to make a protection order, the Court must have regard to—

(a) The perception of the applicant, or a child of the applicant's family, or both, of the nature and seriousness of the behaviour in respect of which the application is made; and

(b) The effect of that behaviour on the applicant, or a child of the applicant's family, or both.

Every question of fact arising in any proceedings under this Act (other than criminal proceedings) must be decided on the balance of probabilities.

[20] The enquiry under s 14(1) entails two stages: first, a determination on whether there is or has been domestic violence; and secondly, a determination on whether a protection order is necessary.

[21] The purpose of subpart 4 of part 2 of the Care of Children Act is to implement in New Zealand law the Convention on the Civil Aspects of International Child Abduction (“the Convention”): s 94(a).

(1) An application for an order for the return of a child may be made to a Court having jurisdiction under this sub-part by, or on behalf of, a person who claims-

(b) that the child was removed from another Contracting State in breach of that person’s rights of custody in respect of the child; and

(c) that at the time of that removal those rights of custody were actually being exercised by that person, or would have been so exercised but for the removal; and

(2) Subject to section 106 a Court must make an Order that the child in respect of whom the application is made be returned promptly to the person or country specified in the Order if –

(3) A court hearing an application made under subsection (1) in relation to the removal of a child from a Contracting State to New Zealand may request the applicant to obtain an order from a court of the State, or a decision of a competent authority of the State, declaring that the removal was wrongful within the meaning of Article 3 of the Convention as it applies in that State, and may adjourn the proceedings for that purpose.

(b) is satisfied that the child has been taken out of New Zealand to another country.

[23] Section 105 reflects the Convention's general objective, which is to achieve the prompt return of a child following a wrongful removal. The court must make an order for the prompt return of the child unless one of the grounds in s 106 is established: see Secretary for Justice v HJ [2006] NZSC 97, [2007] 2 NZLR 289 at [43]. Section 106 provides:

(1) If an application under section 105(1) is made out to a Court in relation to the removal of a child from a Contracting State to New Zealand, the Court may refuse to make an Order under section

105(2) for the return of the child if any person who opposes the making of the Order establishes to the satisfaction of the Court –

(a) that the application was made more than one year after the removal of the child, and the child is now settled in his or her new environment; or

(i) was not actually exercising custody rights in respect of the child at the time of the removal, unless the person establishes to the satisfaction of the court that those custody rights would have been exercised if the child had not been removed; or

(d) that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate, in addition to taking them into account in accordance with section 6(2)(b), also to give weight to the child’s views; or

(e) that the return of the child is not permitted by the fundamental principles of New Zealand law relating to the protection of human rights and fundamental freedoms.

(2) In determining whether subsection (1)(e) applies in respect of an application made under section 105(1) in respect of a child, the court may consider, among other things, -

(a) whether the return of the child would be inconsistent with any rights that the child, or any other person, has under the law of New Zealand relating to political refugees or political asylum:

(b) whether the return of the child would be likely to result in discrimination against the child or any other person on any of the grounds on which discrimination is not permitted by the United Nations International Covenants on Human Rights.

(3) On hearing an application made under section 105(1) in respect of a child, a court must not refuse to make an order under section 105(2) in respect of the child just because there is in force or enforceable in New Zealand an order about the role of providing day-to-day care for that child, but the court may have regard to the reasons for the making of that order.

[24] In Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581, the Court of Appeal considered the approach on appeal for the imposition of a protection order under the Domestic Violence Act. The Court held that the factual inquiry under s

14(1)(a) can be reviewed on Austin, Nichols principles. But the necessity assessment under s 14(1)(b) is the exercise of a discretion. At [67]-[69] the Court said:

[67] There is a two pronged test in s 14(1) of the DV Act: see Appendix One at para 90. Both limbs must be satisfied before a Court can issue a protection order. There must first be a factual finding that the respondent is using or has used domestic violence against the applicant, or a child of the applicant's family, or both. Domestic violence is defined widely under s 3 of the Act: see at para 88. Any factual finding of this nature would be reviewable on ordinary appellate principles, as outlined in Austin, Nichols.

[68] Under the second limb of s 14(1), there must then be a finding that the making of an order is necessary for the protection of the applicant, or a child of the applicant's family, or both. This is an evaluative decision made by the Judge, taking into account all relevant factors: see at para 38 above. We consider that Fogarty J was correct to categorise the issue of necessity as a discretionary decision for appellate purposes and thus as one that is not subject to the Austin, Nicholls analysis...

[69] This means that to succeed in an appeal, an appellant must show that the Judge acted on a wrong principle, that he or she failed to take into account some relevant matter, that he or she took account of some irrelevant matter, or that he or she was plainly wrong — ie that the Judge could not legitimately have come to the conclusion that he or she did. Treating the decision as to whether a protection order is necessary as discretionary is consistent with the requirement in s 5(2)(b) of the DV Act that matters should be dealt with expeditiously.

[25] It is important to emphasise that the Court of Appeal made these observations in respect of the necessity assessment under s 14(1)(b). At [71], the Court said there is no residual discretion not to make a protection order if s 14(1) is satisfied:

[71] ... We do not consider that in the case of protection orders there is any real discretion once a Court is satisfied that both limbs of s 14(1) of the DV Act are met. To decline a protection order in such circumstances would not accord with the protective objects of the DV Act. Unlike the situation in Rajamani, and despite the permissive wording in s 14(1) of the DV Act, there can be no room for any residual discretion.

[26] The appeal against a decision exercised under s 106(1) to refuse to return a child is an appeal against the exercise of a discretion.

[27] Coates v Bowden (2007) 26 FRNZ 210 (HC) concerned a successful appeal against a Family Court decision that ordered the return of three children to Australia. The application for the children to be returned was resisted upon the grounds under ss 106(1)(b)(i), 106(1)(c) and 106(1)(d). The Family Court Judge exercised his

discretion and ordered the return of the children. On appeal, Winkelmann J made the following comments in regards to the approach on appeal:

[30] This appeal is an appeal against the exercise of a statutory discretion, and so falls to be determined in light of the principles articulated in May v May (1982) 1 NZFLR 165 (CA) at p 170, that to succeed with such an appeal the appellant must show:

The Judge acted on a wrong principle; or that he failed to take into account some relevant matter or that he took into account some irrelevant matter or that he was plainly wrong.

[31] The appeal also falls to be determined in accordance with the policy underlying the Hague Convention. As was said by the Court of Appeal in P v Secretary for Justice [2007] 1 NZLR 40; (2006) 25 FRNZ 327 (CA) at para

204 and reiterated in Smith v Adam [2006] NZCA 494; [2007] NZFLR 447 (CA) at para 16, given the summary nature of Hague Convention cases and the specialist

nature of the Family Court, decisions should not be disturbed too readily on appeal in the absence of an error of principle.

[28] Andrews J adopted this approach in AHC v CAC [2011] 2 NZLR 694 (HC), where Her Honour said:

[20] A judgment on an application for an order for the return of a child involves findings of fact and the evaluation of factual matters, as well as the exercise of a discretion under s 106(1) of the Act as to whether to refuse to make an order for the return of the children.

[21] ... To the extent that the Family Court Judge exercised a discretion, then this court should only interfere if satisfied that the Judge acted on a wrong principle, took into account irrelevant matters, failed to take relevant matters into account, or was plainly wrong.

[29] The Supreme Court in Secretary for Justice v HJ considered an appeal against a decision refusing to order the return of two children to Australia. The key issue on appeal was the basis upon which a court may exercise the power under s 106(1) of the Act to refuse to order the return of an internationally abducted child.

[30] Throughout the judgment, the Supreme Court referred to the s 106(1) power as an exercise of a discretion.

[32] ... The issue is whether the Judge erred in making that order. Had the father applied within 12 months of the children's removal from Australia, the Family Court would have been obliged to order their return. But the

combination of the fact that the application was made outside the 12 month period, and the Judge's finding that the children were now settled in New Zealand, meant that the Family Court was no longer obliged to order their return. Whether to do so became a matter of discretion pursuant to s

[34] The issue whether the Family Court exercised its discretion properly has two dimensions. The first concerns the nature of the discretion vested in the Family Court when more than 12 months have elapsed between wrongful removal and application for return, and the children are settled in their new environment. ...

[32] The parties accept that, in accordance with Surrey and the majority decision in Secretary for Justice v HJ, when making a decision under s 14(1)(b) of the Domestic Violence Act and under s 106 of the Care of Children Act, Judge Brown was exercising a discretion. So, the appeal against those decisions is to be conducted in terms of the principles in May v May (1992) 1 NZFLR 165 (CA). It is for this reason that the Judge’s failure to articulate the reasons for his decisions, and in the case of the decision under the Domestic Violence Act to even address whether a protection order was necessary or not has left this Court with little or no option but to send the matter back to the Family Court.

[33] On general appeal, the appellate court conducts the appeal by way of rehearing and has the responsibility of considering the merits of the case afresh. With an appeal against the exercise of a discretion, an appellate court cannot intervene unless satisfied that the court at first instance acted on a wrong principle, took into account an irrelevant consideration, failed to take into account a relevant consideration, or its decision is plainly wrong: see Kacem v Bashir [2010] NZSC

[34] But without reasons from the court at first instance, an appellant in an appeal subject to May v May principles is poorly placed to point to any appealable errors in the exercise of the discretion. As was recognised in Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [80], failure to give reasons means that the “lawfulness of what is done cannot be assessed by a Court exercising supervisory jurisdiction”.

The appellant is left with inviting the appellate court to infer that the first instance judge has reasoned wrongly to arrive at his or her decision.

[35] In principle, an appellate court dealing with an appeal against the exercise of a discretion may attempt to infer the reasons for the decision under appeal. However, that will depend upon whether the factual circumstances compel a particular decision. It may be that here Judge Brown considered that the facts were so compelling that it went without saying that a judge would necessarily make the orders that he did. However, if that were the case, it would have been better if some reasons along those lines had been expressed. The discretionary assessments that s 14(1)(b) and s 106 require are essentially contextual and factually driven. It follows that the judge who has heard and seen the witnesses is best placed to make those assessments. This is particularly so when, as here, the case is factually contentious.

[36] In each appeal, the parties’ counsel considered that the interests of justice would be best served by me sending the matter back to Judge Brown so that he can reconsider and give reasons for his decisions on the making of a final protection order and the refusal to order the return of S to Fiji. In this regard, they considered that Judge Brown was better placed that this Court to undertake that task. Because I agreed with counsel, I did as they requested.

High Court of New Zealand Decisions

Huntly v Hamilton [2014] NZHC 1686 (18 July 2014)