Photo: RNZ / Alexander Robertson
The High Court has found a judge "effectively teamed up" with the lawyers of an ex-husband to strip a woman of her property rights and force her to pay hundreds of thousands of dollars in legal costs.
The woman - known as Mrs P, her real name permanently suppressed - was ruled against in 2015 by Family Court Judge Peter Callinicos after the couple's separation agreement landed in court.
P was from a well-known Gisborne farming family, and Mrs P was a teacher from Hawke's Bay. They were married some 16 years, and when they separated, their relationship property included a farm and multiple houses.
Judge Callinicos ruled in her ex-husband's favour - but the repercussions went further than that. As well as losing her rights to the marital property, Mrs P was forced to serve a sentence of nine months' home detention for perjury (only to have the conviction later overturned), ordered to pay $250,000 in costs and declared bankrupt.
At the heart of the perjury decision was Judge Callinicos' assertion that she was lying about being abused by P.
It hinged on an ACC form, submitted as evidence, in which Mrs P changed details and redacted information to correct some dates, hide the identity of her previous husband (before P) and to conceal her bulimia.
Judge Callinicos saw this as an intentional deception to show she was abused by P, despite there being other, unaltered ACC forms submitted as evidence which corroborated the abuse - including the unaltered version of the form in question.
As well as ruling against her, he referred the matter of perjury to police, who charged Mrs P. That conviction was later overturned - but not before she had fulfilled her home detention sentence.
Only last year, Mrs P was granted the right to appeal the 2015 decision.
The new case was heard by High Court Justice Rebecca Ellis at the High Court in Gisborne, and the decision, released at midday on 6 December, was in Mrs P's favour.
In her decision, Justice Ellis said she believed the ACC form incident had skewed Judge Callinicos' view of Mrs P.
"There can in my view be little doubt that it was the mistaken belief that [Mrs P] had committed perjury that was the primary cause of the unfairness; that belief pervaded and tainted the hearing," her judgment read.
She ruled Judge Callinicos' treatment of Mrs P during the trial was also unfair.
"During the six hours and 15 minutes of cross-examination, Mrs P's answers were interrupted by Judge Callinicos at least 20 times - at one point, there were eight interruptions in one hour.
She noted at times Mrs P was "audibly distressed and in tears (including, on at least occasion, while she is being questioned by the judge)".
"The interventions were not unfair because they interrupted or undermined the cross-examination conducted by [Mrs P's] counsel. On the contrary, they had the effect of building on counsel's efforts to undermine and belittle [Mrs P].
"On reading the transcript it is difficult not to be left with the impression that [P's] counsel and the judge effectively teamed up against [Mrs P]."
The judgment detailed "some of the more egregious" lines of questioning from the court transcripts and audio recordings.
Q (Judge Callinicos): So is 11.3 just another situation where yet again another lawyer has incorrectly stated your words? Is that what it is? What is your explanation?
A (Mrs P): Well that's what I told her -
Q: Well what is your explanation?
A: Well I told her -
Q. Listen to these words, "I reported the sexual violence to the police in Tolaga Bay -
A. Well that's how my lawyer has written what I told them about -
Q. Yes, so that's what I'm saying and I guess you blame your lawyer because your lawyers seem to feature more for a lot of explanations but you were put a very clear question by [P's counsel], which was, did you report any of these matters of the alleged sexual violence to the police? And you said emphatically, no, and yet here is yet again another sworn statement by you that in 2005, "I reported the sexual violence."
A. But that was how, to me, I didn't go to the police and report it, he rang up -
Q. Why, why didn't you say that in 11.3?
A. Because that's what my lawyer put in, that's how they word it. I told her the situation I'm in -
Q. Oh okay, so yet again let us go through the exercise, when you swore this document -
A. All right, I did swo -
Q. When you swore the document -
A. If that's reporting it to the police, I did.
Q. Did you read the document before you put your signature to it?
A. Yes. But -
Q. Yes or no.
A. Yes I did.
Q. You either read it or you didn't.
A. I mean it wasn't, I thought reporting it to the police was when you -
Q. No, no, no, no, no, no -
A. - make a complaint and you want something to happen -
Q. No, did you read this document before you swore it?
A. Yes I did.
Q. Good, thank you.
A. May I just explain about it?
Q. No.
And later on...
Q. I'm going to put very clearly to you and plainly to you, when a person fabricates documents for various purposes, attaches them to an affidavit, stating she's attaching them to an affidavit to attack, to refute the matter and you actually state it as being there as a credibility issue, and the irony is for you gain superior credibility over then this is a real irony - you fabricate a document in a court process to do it, then you can expect a robust experience in court. I make no apology for that and this is all on the record. And you're just going to have to cope with that. Okay?
A: I'd just like it known that I haven't actually seen my friends for about six years. I keep to myself. I don't socialise. I don't talk about -
Q. Sorry, what's that got to do with your sworn statement?
A. Well you're trying to make out that I'm spreading this in the community and -
Q. No [P's counsel] had put it to you that you declined that you had, and yet here's this sworn statement that you told three close friends about the abuse -
A. That's not the community -
Q. - and yet you had denied you had done that.
A. But -
Q. You've emphatically -
A. I protected my husband's reputation -
Q. No sorry, you emphatically -
A. - that's what I did -
Q. You emphatically denied the questions put to you by [P's counsel] about precisely that. You said you hadn't done that. And here's another sworn statement by you which says you had.
A. I mean I'm just, it's hard, like you're saying about, I just, I just can't win. I mean I can't, I mean (inaudible).
Q. Well you're going to have a difficulty winning if occasions when you are on oath, as you are now, you are giving different answers in court today to sworn statements on oath -
[...]
Q. These are very clear statements. They're not vague statements.
A. But I know I protected his reputation for so long and that's all I remember about that period. It was such a long time ago and I know I did protect his reputation -
Q. You've hardly protected his reputation, have you, when you launch into this, fabricate documents and bring about in a large part the very predicament that you and your husband are in today. Because by fabricating documents, it exacerbates the dispute and you're hardly protecting his - from your perspective - his reputation by doing that when you've already told close friends about it in a small community about it.
A. I kept quiet for much of my marriage and now I just feel like I'm being, you know. I was so isolated, to talk to three friends is not -
Q. And what do you feel like today? What are you trying to say? What do you feel like today? That you are being punished for it in some way?
A. I'm just, knowing what I know, about how I behaved and I just feel like the court's being really quite, um -
Q. What? Tough on you?
A. Because I know -
Q. Because you fabricate documents and swear false affidavits? What did you remotely expect -
A. I just also know that has lied -
Q. What? No.
A. - under oath.
Q. You stop here. What did you remotely expect of a court? Do you think I treat this job with frivolity? That people can come into it and fabricate documents? It is a criminal offence putting false documents or statements to ACC to gain counselling and payment, it's a criminal offence.
A. I was protecting -
Q. Do you grasp any of this, the enormity of it?
A. I do but the thing is I was doing that to protect my husband and it's been turned around to make out -
Q. Well I simply -
A. - that I was fabricating -
Q. - do not accept -
A. - a document.
Q. - a word of what you're saying.
A. Exactly and -
Q. I think it's -
A. - that's my point.
Q. - completely false on your part. It is yet another manipulation of your evidence. But we'll move on from that tomorrow because - but you're just going to have to accept if you fabricate documents and you make false statements in your affidavits and completely contradict ones then you are going to find a robust response. If you don't want that, then tell the truth on everything. You can reflect on that overnight and we'll see how you go in the morning.
Judge Peter Callinicos. Photo: The District Court of New Zealand
Justice Ellis also found P's lawyers were "improper or unfair", for "questions that were unnecessarily pejorative ('You keep going back to the property don't you, sneaking around like a common thief and taking stuff don't you?') and the use of sarcasm during sensitive lines of questioning:
Q: And, and what was the nature of the sexual and physical abuse?
A. In terms of ?
Q. Yeah?
A. Well just holding my throat for sex, I'd hide in a cupboard, he'd grab at my crutch, he'd hold his butcher's knife, chase me up the road and he'd hold his knife to my throat and once your breathing is compromised, sure I wasn't fighting and that because I couldn't breathe, I mean you do just lay there and...
Q. And what?
A. Oh you let them have sex with you because -
Q. Well how distressing that would be, and you'd go and see the police about that, wouldn't you?
In closing, Justice Ellis reversed the previous decision on marital property, and the costs orders.
"So in a sense, the parties are very much back to square one. Given the tortuous history of this matter that is extremely regrettable," her judgment read.
She noted neither Mr nor Mrs P wanted the matter sent back to the Family Court for a rehearing, as would normally be the case.
"The obvious and most desirable course would be for the parties to try again to settle their relationship property issues out of court. That is, of course, a matter for them."
In the section titled 'Last word', she stated the prior conclusion that no abuse had occurred "cannot stand" - however; "I am not, in this judgment, to be taken as making a positive finding that abuse did occur.
"To make such a finding would not be possible or right in the present context; it would be well beyond the ambit of this judgment."
