PALMERSTON V PALMERSTON HC WHA CIV 2006-488-431

PALMERSTON V PALMERSTON HC WHA CIV 2006-488-431 12 July 2007IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY CIV 2006-488-431BETWEEN PALMERSTON Appellant AND PALMERSTON Respondent Hearing: 8 June 2007 Appearances: C Muston for the appellant B Westenra for the respondent D Whitehead counsel for the children Judgment: 12 July 2007RESERVED JUDGMENT OF PRIESTLEY JThis judgment was delivered by me on 12 July 2007 at 11.45 am pursuant to Rule 540(4) of the High Court Rules. Registrar/Deputy Registrar Date: Solicitors: C Muston, P O Box 1905, Whangarei B Westenra, P O Box 127, Whangarei D Whitehead, P O Box 409, WhangareiThe Issue[1] In February 2006 Judge O'Donovan presided over a hearing in the Family Court at Whangarei. [2] Both parties sought the day to day care of their children who were then aged 13, 6, and 5. Linked to that dispute was the issue of where the children should live and what schools they should attend. [3] During the course of the hearing the Judge heard evidence from the mother to the effect that approximately seven years previously the father had raped her. This alleged rape took place shortly after, on the mother's evidence, she had been raped by another man. [4] The Judge made a finding on that evidence. However, in the context of the issues before him his finding that the father had raped the mother was not determinative. The Judge was satisfied his finding raised no safety issues so far as the children were concerned and there should be no restrictions placed on the father's contact with them. [5] The father had denied the mother's assertion. He was aggrieved by the finding. He considered it to be wrong and an unfair finding which, in effect, labelled him as a rapist. He thus sought leave to appeal the finding to this Court. Leave was necessary because his appeal, when filed, was out of time by approximately four and a half months.Resolution[6] This Court was assisted by comprehensive submissions from all three counsel. Regrettably there are still disputes between the parties. There is currently an application pending in the Whangarei Family Court by the mother to relocate from her current home to another part of Northland where her partner is sharemilking.[7] The sole issue before this Court was whether leave to appeal out of time should be granted. Were such leave to be granted a substantive appeal hearing would lie ahead. [8] Since the appeal is lodged under the Care of Children Act 2004 the leave application would have to be informed, inter alia, by a consideration of the children's welfare. A combination of further protracted litigation and possible downstream difficulties for the children flowing from a judicial finding that their father was a rapist led the Court and counsel to an acceptable resolution for all concerned. [9] That resolution was that, with no opposition from the mother's counsel, leave be granted and the appeal allowed solely to the extent of setting aside the Judge's findings of which the father complained. That result would be expressly on the basis that the same allegations which the mother raised in the February 2006 hearing could be raised by her again in any subsequent litigation between the parties if she considered it necessary, so to do. [10] On that basis this Court initially prepared a draft judgment which was acceptable to all three counsel. This judgment is the final result.Family Court Judgment[11] This Court would not lightly interfere with the finding of a highly experienced and humane Family Court Judge. Arguably, despite the conflict of evidence on the issue with which he was presented, the finding was open to him. However, in the context of the disputes before him and what the Judge needed to decide, it would probably, with the advantage of hindsight, have been preferable for him to have stated he did not need to determine the issue. His principled and determinative finding was that there was no reason to restrict contact between the father and the three children. [12] The relevant portions of the Family Court judgment, given orally on 8 February 2006, were these:[14] There are some matters arising from the hearing to which I need to make reference. In addition to the allegations made by mother relating to [the father's] violence towards [the eldest child] in particular, she also alleges violence towards her by him. In particular, she refers to an occasion when she says that she was raped by him. For his part father denies the allegations of rape although, as I have said, he acknowledges inappropriate physical discipline by him of [the eldest child]. With regard to the allegation of rape, the events to which it relates happened a long time ago and I do not understand [the mother] to say that there has been any repetition of that sort of conduct. Very briefly, the circumstances were that mother had, she says, been raped by another man. When she informed her husband of this he in turn raped her saying, according to her, that he was "reclaiming her". As I have indicated, I formed the impression that [the mother] was a witness of the truth. I find no reason to doubt what she says about this particular incident. On the other hand, I am satisfied that there is no likelihood in the future that [the mother] will be the subject of violence by her husband. [18] I am able to make some findings about the more serious of the allegations made by the parties about matters relating to this case. I find that father has been guilty of domestic violence as far as [the eldest child] and [the mother] are concerned. I find that he did rape [the mother]. However, my view is that these matters will not prevent [the father] safely parenting the children without supervision.[13] The portions of this judgment which effectively need to be quashed or expunged on appeal are: a) In para [14] the second to last sentence, "I find no reason to doubt what she says about this particular incident". b) In para [18] the sentence, "I find that he did rape [the mother]". [14] The mother was not, for one moment, consenting to the removal of these passages. Her position is as stated in [9]. [15] It is not necessary, given the approach of counsel, to summarise counsel's comprehensive submissions. Were a court in a case such as this minded to make a finding of rape, it is clear law that the civil standard of proof, on the balance of probabilities must operate. There is on the authorities no intermediate or sliding standard (as used to be the situation when allegations of paternity or adultery were made) between the balance of probabilities and the criminal standard of beyond reasonable doubt. (See R (on an application of N) v Mental Health Review Tribunal(Northern Region) [2006] 4 All ER 194; re H (minors)(sexual abuse: standard of proof) [1996] AC 563). However, courts must be alert to reputational issues and must, on the authorities, take into proper account the seriousness of the relevant allegations. (Hornal v Neuberger Products Ltd [1957] 1 QB 247). [16] As is apparent from the two relevant paragraphs of the Family Court's judgment (supra) these aspects were not considered by the Judge. Thus allowing the appeal and the result agreed by counsel is an appropriate outcome.Result[17] Pursuant to the provisions of s 143 of the Care of Children Act 2004 and Rule 704(2) of the High Court Rules, time is extended to appeal against a portion of the decision given in the Family Court at Whangarei on 8 February 2006. [18] The appeal is allowed in part. [19] The findings contained in the two sentences specified in para [13] of this judgment are quashed. [20] The respondent is at liberty to raise anew the allegations that led to the quashed findings in any subsequent proceedings should she so wish.Costs[21] The costs of the appellant and respondent are to lie where they fall. [22] The reasonable costs of Mr Whitehead, the lawyer for the children, in respect of his appearance on this appeal and preparation of his submissions, are to be met bythe Whangarei High Court Registrar out of the funds specifically allocated by Parliament for the purpose. No contribution from the parties is required............................................ Priestley J