DAVOODI V SHIMEN-HILLS HC AK CIV 2010-404-6838

DAVOODI V SHIMEN-HILLS HC AK CIV 2010-404-6838 10 February 2011NOTE: PURSUANT TO SECTION 35A OF THE PROPERTY(RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDINGMUST COMPLY WITH SECTIONS 11B-11D OF THE FAMILY COURTSACT 1980.IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV 2010-404-6838BETWEEN HADI DAVOODIApplicantAND TINA-MAR'EE SHIMEN-HILLSRespondentHearing: 8 February 2011Counsel: J Noble for AppellantJ Surgenor for RespondentJudgment: 10 February 2011JUDGMENT OF HEATH JThis judgment was delivered by me on 10 February 2011 pursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors:Boyle Mathieson, PO Box 21-640, WaitakereDavenports West, PO Box 21 248, WaitakereCounsel:J Surgenor, PO Box 21418, HendersonThe application[1] Mr Davoodi seeks an extension of time to appeal against a judgment given in the Family Court at Waitakere on 11 May 2010, in relationship property proceedings.1 If an extension of time were granted, he applies also for an order granting leave to adduce additional evidence on the appeal. Both applications are opposed.Background[2] Ms Shimen-Hills brought relationship property proceedings in the Family Court in an endeavour to establish that she had been in a de facto relationship with Mr Davoodi, to determine the status of property and to divide relationship property between them. On 7 April 2010, Judge Maude allocated a hearing on 11 May 2010, limited to the existence or otherwise of the alleged de facto relationship, the division of proceeds and an application for sale of a house property.[3] Evidence was given orally by Ms Shimen-Hills and Mr Davoodi at the hearing on 11 May 2010. After hearing evidence and submissions, Judge Clarkson gave an oral judgment. She found that Mr Davoodi and Ms Shimen-Hills had been in a qualifying de facto relationship for a period of between six and seven years and directed the sale of a property at Doone Place, Massey, in which she found the couple had lived during their relationship. The latter order was made because the Judge was satisfied Mr Davoodi would not co-operate voluntarily in the sale of the house. The Registrar was given responsibility for arranging sale of the home.2[4] Despite Judge Maude's direction of 7 April 2010, the Court did not deal with division of relationship property. Rather, Judge Clarkson took the view that the proceeds of sale of the Doone Street property should be held by the Registrar pending a further hearing and order for division.3 That direction leaves open the1 S-H v D FC Waitakere FAM-2008-090-304, 11 May 2010 per Judge Clarkson.2 Ibid, at paras [11] and [12].3 Ibid, at para [12].ability for Mr Davoodi to contend that there should be an unequal sharing of property4 or to have the relationship treated as if it were one of short duration.5Judge Clarkson's orders also leave open the possibility of an application to the Family Court to stay the order for sale in the event, for example, that Mr Davoodi could persuade the Court that he would likely receive a substantial proportion of the sale proceeds, in circumstances where a sale of the property might result in his inability to acquire another home.6Legal principles[5] The right to appeal against Judge Clarkson's orders springs from s 39 of the Property (Relationships) Act 1976 (the Act). By s 39(3), the High Court Rules apply to such an appeal. The time to appeal as of right expires 20 working days after the decision appealed is given.7 Mr Davoodi's appeal was not filed until 12 October2010, meaning that it was brought some four months out of time.[6] The power to extend time to appeal is contained in r 20.4(3) of the High Court Rules, in unqualified terms. However, there has been a consistent approach to the circumstances that should be taken into account in deciding whether time should be extended. For example, in Juken Nissho Ltd v Attorney-General8 and Hansen v Bird,9 Smellie and Allan JJ respectively took the view that, while the overriding consideration was the interests of justice, the following factors were usually relevant:(a) When and under what circumstances was the decision to appeal taken?(b) The extent of the delay.(c) Whether the delay is capable of satisfactory explanation.4 Property (Relationships) Act 1976, s 13.5 Ibid, s 2E(1)(b)(ii).6 See para [21] below.7 High Court Rules, r 20.4(2)(b).8 Juken Nissho Ltd v Attorney-General (1998) 12 PRNZ 380 (HC) at 383.9 Hansen v Bird HC Whangarei CIV-2004-488-519, 15 February 2007 at para [38].(d) Whether prejudice will be suffered by other parties if time is extended.(e) The strength of the appeal.(f) Any other relevant circumstances.[7] Both counsel addressed me in terms of those factors.The competing arguments[8] Mr Noble, for Mr Davoodi, made the following points:(a) While accepting that the decision to appeal was taken after Mr Davoodi had been served with an application by Ms Shimen-Hills for an occupation order in respect of the Doone Street property, the delayin appealing can be explained by Mr Davoodi's mental state and his lack of understanding of relevant facts and legal procedures.(b) Reliance is placed on a psychological report prepared by Dr Sakdalanon 13 December 2010, verified in the psychologist's affidavit of 15 December 2010. It is said that Dr Sakdalan's report makes it clearthat Mr Davoodi was not capable of making rational decisions about the proceedings in which he was involved. Therefore, his decision to represent himself gave rise to an unfair trial.(c) There was strength in the appeal because witnesses could be called toconfirm Mr Davoodi's contention that he and Ms Shimen-Hills were not in a de facto relationship at the relevant time. Mr Davoodi did not call witnesses at the hearing to support his position.(d) Mr Davoodi remains married to Ms Yuki Okumura, though they separated in 1998. Their marriage has never been dissolved. TheDoone Street property represented their family home. If an appeal were denied, prejudice could be caused to Ms Okumura.(e) The property was purchased well before any relationship between Mr Davoodi and Ms Shimen-Hills began. She did not contribute financially to the acquisition of the home. On the basis that there was a de facto relationship, the only reason she would be entitled to share in that property was because it was their family home.(f) The Judge had erred in referring to settlement offers in her judgment.10[9] Mr Noble's overall position was that the interests of justice demanded thatMr Davoodi have a fair hearing in which he could be represented by counsel and call relevant witnesses.[10] Ms Surgenor, for Ms Shimen-Hills, submitted that an extension of time ought not to be granted. In summary, she contended:(a) There was no satisfactory evidence to explain the delay in appealing.Mr Davoodi's late consultation with a solicitor followed his realisation that the Court orders were likely to be enforced. He had been served with an application for an occupation order around the time he saw a lawyer.(b) Mr Davoodi's election to represent himself ought to be seen in thecontext of a number of observations made by Family Court Judges in the case management of the proceeding. For example, on 7 August 2008, Judge Mather recorded that Mr Davoodi accepted his comment that he needed legal advice and that he was likely to qualify for legalaid. It is clear from Judge Mather's minute that he told Mr Davoodihow to process an application for legal aid. None was made. In addition, on 15 October 2008, Judge Fitzgerald had repeated Judge10 S-H v D FC Waitakere FAM-2008-090-304, 11 May 2010, at para [9].Mather's observations. It appears there was then an expectation that Mr Davoodi would be represented.(c) Mr Davoodi well understood the issues before the Court. Judge Clarkson, a very experienced Family Court Judge, did not consider that his ability to present his case was impaired; she did not consider it necessary to appoint counsel to assist the Court. The appeal was determined on credibility grounds.(d) References by the Judge to settlement offers fell outside of asettlement conference regime and resulted from Mr Davoodi's ownaffidavit, filed after the conference was held.(e) Judge Clarkson was unaware of the alleged interest in the property ofMs Okumura. In any event, Ms Okumura's position could beprotected by enabling her to be heard on the issue of division of the proceeds of sale of the Doone Street property.Analysis[11] In my view, the factors that weigh against the grant of an extension of time far outweigh those in favour. I can express my views for reaching that conclusion relatively briefly.[12] The reasons advanced to explain the delay in seeking to bring the appeal are not particularly cogent. The longer the delay, the greater the need for clarity and specificity to justify it.11[13] There is no merit in Mr Davoodi's contention that he was unaware he couldseek legal aid. That point was brought home forcefully to him by Judge Mather, and reinforced by other Judges. It is disingenuous for him to suggest otherwise,11 Ilich v Commissioner of Inland Revenue HC Auckland CIV-2009-404-891, 24 June 2009 at para [43].particularly based on an unsuccessful application for criminal legal aid made in 2002.[14] The appeal, if it were to proceed, would result in another trial. That is because the allegation of unfair trial in the Family Court could only be remedied by a full hearing, including examination and cross-examination of witnesses in this Court. That is not the usual function of an appeal, though in a case where clear evidence exists that a party did not understand the process and was unable to comprehend what was required of him or her that may be the only option. But that is far from the case on the present evidence.[15] The evidence of Dr Sakdalan does not persuade me that Mr Davoodi did not understand the nature and seriousness of his decision to represent himself or impede (any more than any other self-represented litigant) his ability to present his evidence and argument. Contrary to some suggestions made by Mr Davoodi, Dr Sakdalansaid that Mr Davoodi "spoke fluent English and did not appear to have any significant problems with expressing his thoughts and feelings". Despite the factthat there were occasions when Dr Sakdalan had to explain some things to him in simpler terms, I have no doubt that the experienced Family Court Judge would have taken a similar view.[16] Dr Sakdalan's impressions of Mr Davoodi can be captured in the followingextracts from his report:...Mr Davoodi impressed the writer as an individual who has difficulties with picking up social cues for the purpose of generating appropriate social responses. He was over familiar with the writer and had to be reminded of the professional boundaries (i.e. I am [not] a friend but an assessor). Mr Davoodi does not appear to have any formal thought disorder; however, he would often [go] off tangent and he became fixated with certain topics (i.e. future plans, issues with the complainant) that he had difficulties being redirected to answer the questions. At times, he became confused and disoriented particularly when he was asked some specific details about his case (i.e. details about his relationship with the complainant, timelines around the case, etc). Mr Davoodi reported feeling depressed and admitted to occasional suicidal thoughts. However, he was adamant that he would not commit suicide as it would be against his religious beliefs. Mr Davoodi denied experiencing psychotic symptoms such as hallucinations and delusions. However, he seemed to have peculiarities in his thinking andexperiences and some unusual and grandiose ideas (i.e. having exceptional skills and business acumen). At the time of the interview, Mr Davoodi was disoriented with the date and he did not get his age right (i.e. indicating he was 55 years old)....Mr Davoodi is likely to have rigid thinking patterns and tends to ruminate about matters to the degree that he often has difficulty making decisions and perceiving the larger significance of decisions that are made. His clinical profile is consistent with an individual who is experiencing a disturbing traumatic event that continues to distress him and produce recurrent episodes of anxiety. Mr Davoodi is likely to report numerous physical and health problems which may be suggestive of some form of psychosomatic illness.Mr Davoodi exhibits significant depressive experience. He appears to manifest affective and physiological signs of depression. He openly admits to experiencing depressed mood, loss of interest in normal activities, loss of pleasure in things, disturbed sleep pattern, decrease[d] level of energy and sexual interest and loss of appetite. In addition, he reports physical (i.e. fatigue, tension, etc) and cognitive symptoms of anxiety (i.e. excessive worry, attention problems, etc).Mr Davoodi's responses indicate peculiarities in thinking and experience. He reports unusual perceptual or sensory events (i.e. thought broadcasting, hearing voices) and unusual ideas that may include delusional beliefs (i.e. being a target of conspiracy). His thought processes may occasionally be marked by some confusion and difficulty concentrating....Based on the assessment findings, the writer is of the opinion that Mr Davoodi is most likely suffering from a Major Depressive Disorder, Recurrent (based on the DSM-IV TR). He reports feeling a great deal of tension, has difficulty relaxing, and likely experiences fatigue as a result of high perceived stress. He has been complaining of high levels of cognitive and physical symptoms of anxiety and depression (i.e. excessive worries, concentration and attention problems, sleeping difficulties, fatigue, intermittent suicidal thoughts, depressed mood, loss of sense of pleasure in things, feelings of hopelessness and low self-esteem, etc). It seems that he has been experiencing these problems for the past several years as a result of the constant stress that he has been experiencing in relation to the complainant, ongoing financial problems and dealing with the decision of the court in regards to his case.The writer is of the opinion that personality (i.e. peculiarities and rigidity in thinking, sense of grandiosity, possible delusional beliefs) and mental health issues would most likely impact on his ability to represent himself in court. It may also affect his decision making ability particularly with the marked confusion and difficulties with attention and concentration that he has been experiencing in the past few years which was further aggravated by his court case..... (my emphasis)[17] The highlighted portion of Dr Sakdalan's report does not indicate the degree to which Mr Davoodi's self-reported problems might have impacted on his ability to represent himself in Court. As for his decision-making ability Dr Sakdalan is guarded in his opinion.[18] To overturn the Family Court's finding that a de facto relationship existed, Mr Davoodi would be faced with a challenge to a credibility finding made by the Family Court Judge after seeing and hearing witnesses. That is an advantage that the Supreme Court has recognised must continue to be given weight on appeals.12Mr Davoodi's defence was that there had been no relationship; plainly one that cannot have had any prospect of success given other evidence. Judge Clarkson recognised that when she said:[2] The evidence of the applicant is that the parties first met in 1987 and had a brief relationship. They then met again in mid-1998 and she moved into his house in February 1999. They were separated in about January of 2006. The applicant alleges that a violent incident occurred at this time in which she called the police and then moved out of the property.[3] The respondent says this is all lies. He says that the applicant was someone who used to threaten him with police action if he did not accompany her on outings. He says that she has manufactured the evidence to base this claim against his house. On the other hand he says the house which is registered in his name is not really his house. He says he thought the applicant had a mental disorder but then decided she was very clever. He says she tricked him into being in situations where they could be photographed together, and that he wishes to have nothing to do with her and that she never lived with him....[6] The respondent says that the applicant is so manipulative that she wouldarrange to include him in her mother's death notice in order to, as he puts it,rip him off for the property. I have to say that I find that simply not credible. The respondent annexed to one of his affidavits the applicant's bankstatements which he said were given to him as rubbish to throw out by her father. Once again I find that lacking incredibility entirely.[7] The respondent's evidence was evasive, inconsistent and nottrustworthy. Where his evidence differs from the applicant's, I prefer theapplicant's. It is clear they had a sexual relationship over an extendedperiod. I accept that other than for periods when she was nursing her ill mother, the applicant resided with the respondent for about six to seven years. They resided together for up to seven years. They resided in the property at Doone Place, Massey which is the subject of this application. During this time I am satisfied that the applicant worked full-time12 Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC) at para [13].contributing to household expenses. She also supported, to a certain extent, the respondent in some unsuccessful business ventures.[8] The photographs and the death notices are demonstration that they presented as a couple to the world at large. For the respondent to suggest that she manipulated him into situations where they could be photographed together is clearly nonsense. Two of the occasions shown in the photographsare outings with the Iranian community. That is the respondent's community, not the applicant's community.....[19] The fact that Mr Davoodi had run his case on that basis, the Judge had not seen fit to appoint counsel to assist him as a result of any concern that Mr Davoodi was incapable of presenting his case adequately and the findings of credibility made by the Judge, make the prospects of success on appeal minimal.[20] Ms Okumura's position can be protected, even without an appeal. Asdivision of relationship property has still not been undertaken, she could seek to be heard in the Family Court when questions of division of property arise.13[21] Any claim by Mr Davoodi for unequal sharing or for division to be conducted in a manner analogous to that applicable in a marriage of short duration14 could be preserved if the Family Court were to accept an argument that sale should be stayed to enable those issues to be aired adequately, on the basis that Mr Davoodi was unlikely to be able to acquire a new home in the future if the property, presently valued at $360,000, were sold.[22] Those factors lead me to the view that the application to extend time to appeal must fail.Result[23] The application to extend time to appeal is dismissed. It is unnecessary to deal with the application to adduce further evidence on appeal. That too is dismissed.13 Property (Relationships) Act 1976, ss 52A and 52B.14 Ibid, ss 13 and 2E(b)(i).[24] Mr Davoodi is now legally aided. Had Mr Davoodi not been in receipt of legal aid,15 I would have ordered costs against him on a 2B basis, together with reasonable disbursements, both to be fixed by the Registrar. Given the circumstances, Mr Noble did not and could not dispute that an order for costs should be made if the applications were unsuccessful.[25] I thank both Mr Noble and Ms Surgenor for their assistance._________________________P R Heath JDelivered at 9.30am on 10 February 201115 Legal Services Act 2000, ss 40(5) and 41. See also S v I HC Hamilton CIV-2009-419-139, 21 August 2009 at para [57]