Family Court failings
Advocates for change in the Family Court system say a Gisborne woman's experience provides a rare insight into existing concerns about widespread mistreatment of women and children by the court.
The woman, whose name is suppressed, has been dubbed in Stuff reports as “Mrs P”, and referred to in similar Newsroom coverage as “Sarah”.
Last June, after a seldom-granted second appeal, her conviction for a perjury charge arising out of the Family court was quashed.
Elizabeth Hall, the lawyer who fronted the appeals, is quoted in national media as saying the prosecution should never have happened, that Mrs P was treated very badly by the Family Court, which did not believe she had been subject to spousal abuse and ultimately referred her to police for having altered a document she included in an affidavit as evidence of the alleged abuse.
The case is one of several national media have been investigating involving alleged traumatic and abusive treatment of women by the Family Court.
Referencing Family Court transcripts, the Stuff and Newsroom reports retraced the woman's experience, which began in 2009 when she altered the document – an ACC sensitive claims form – then swore it was a true and correct copy as part of an affidavit.
The altered state of it was called into question during 2015 by the lawyer for the woman's ex-husband, who had obtained a copy of the original.
Presiding judge Peter Callinicos strongly admonished the woman for altering the document and called her one of the least credible witnesses he had ever observed.
The judge accused the woman as lying in an “unreasonable pursuit” of more money, saying her “unmerited attack” had caused ‘serious injustice” to her ex-husband.
“She presented false evidence in a calculated and manipulative manner to achieve her end goal of discrediting (her ex-husband),” the judge said.
He criticised her for confiding in three close friends about the alleged abuse and dismissed their evidence when she called them as witnesses, saying they were “unwitting victims” of the woman's manipulative behaviour, believing what she told them.
By contrast, the judge found her ex-husband to be “the embodiment of a reliable and credible witness,” saying he had no doubt as to the accuracy of his evidence.
In his final decision, Judge Callinicos refused the woman any further claim to matrimonial property and ordered her to pay $400,000 in costs, which she told national media had ultimately bankrupted her.
The judge then referred her alteration of the ACC form to police.
“Such calculated and dishonest actions cannot go without repercussions,” Judge Callinicos said.
She was subsequently charged with two counts of perjury — a Crown scheduled offence punishable by up to seven years imprisonment.
The perjury charges — one of altering the document and signing it as an affidavit in 2009 and another of admitting it into evidence in 2015 — were heard at a judge-alone trial in Gisborne District Court during 2018.
At the outset of the case, the woman's criminal lawyer applied for Judge Warren Cathcart to recuse himself due to his knowledge of the Family Court's findings of the woman's credibility. The judge declined.
He found the woman as unreliable a witness as Judge Callinicos had and ultimately ruled she was guilty of the 2009 charge, but dismissed the other.
Her lawyer sought a discharge without conviction submitting a conviction would prevent the woman continuing in her career but prosecutor Steve Manning argued that being middle-aged, the loss of her job was less important that it would have been for a younger person.
The judge imposed 12 months home detention, saying he would have jailed her were it not for her blameless personal history and fragile mental health.
A week later, the woman was charged with contempt of court and spent three hours in holding cells after she refused to stand when required while waiting in the back of the court for a final name suppression hearing.
The woman apologised and said her actions were mainly due to feeling mistreated within the justice system, particularly by Judge Callinicos. She was convicted and fined $650.
The judge granted her application for name suppression but said it was only to protect her adult children's identities.
National media report the woman's health suffered as a result of her experience in the court process and had worsened by the time Wellington lawyer Elizabeth Hall picked up the case.
Ms Hall appealed the perjury conviction and the sentence.
Justice Karen Clarke upheld the conviction but reduced the sentence to nine months, albeit the woman having already served it.
Notwithstanding the result, Ms Hall noted the High Court judge’s acceptance of the woman's claims of abuse and saw it as hope to pursue a further appeal.
The case was considered by the Court of Appeal last June after a rare second appeal was granted.
The three judges who reviewed it decided there was no perjury.
They said the woman did not need to rely on the document to prove abuse and alterations on it were obvious.
The Crown had failed to prove the charge because it needed to show that when she signed the affidavit the woman was saying she believed the altered ACC form was a true copy of the original, not whether she believed it to be a true statement of fact.
Dates the woman changed on the form, that attributed her abuse to a partner preceding her ex-husband were clearly incorrectly recorded by the counsellor who first completed it, the Appeal Court said.
The Appeal Court judges expressed concern about the lower court judges' findings.
They noted the force with which Judge Callinicos considered the woman to be an unreliable witness and that Judge Cathcart also similarly dismissed the woman's evidence.
They were critical the district court judge was not provided with the original ACC form so could not see how obvious the alterations must have been (the original could not be found for the appeal either.)
They questioned aspects of the reasoning in his decision.
They were also critical of the nature of Mr Manning's cross-examination of the woman, saying it was "overall unfair and at times bullying”.
The Crown and the judge got it wrong, they said.
Ms Hall was quoted by Stuff as saying, “We must all fully accept that our criminal justice system is not always accurate. We owe it to this woman to make changes . . . to ensure that decision-making about prosecutions are more thoroughly reviewed and that there is some accountability when mistakes are made.”
She wanted the woman compensated, an apology and public recognition that what happened to her was wrong.
Stuff also reported on the likelihood of the woman being compensated. The idea was rejected by former Justice Minister Andrew Little when first asked about it last year.
The Minister's response was that someone on home detention did not suffer “the same level of deprivation as someone who's spent time in prison”.
That position was reiterated in recent weeks by current Justice Minister Kris Faafoi.
The woman told Newsroom: “The irony is I'm eligible but because my ex-husband bankrupted me, any compensation will go to him.”
Even with her conviction overturned, she still felt like an outcast, she told Stuff.
“I feel ashamed about the things that have been said about me and hurt at the many untruths and the unfairness of it all.
“It has been devastating to have my reputation attacked in court by the Crown and the judge . . . I continue to struggle with the court's decisions.”
It was difficult to share her story with the media but she hoped it would provide protection and support for other women.
“People are so vulnerable when a marriage ends and most know nothing about the legal system, and you put your faith in a lawyer and the court.
“The toll that ongoing family proceedings have on all parties involved is huge . . . the cost to both parties financially and in terms of emotional health and family relationships, and especially to the children they share.”
After learning to cope with what happened in their marriage, it was wrong and damaging for women to be further bullied and traumatised in the Family Court, she said.
“Current official advice is for domestic abuse victims to tell someone, yet here in court I was berated by the judge for spreading it in the community and discrediting my husband.”
There have now been calls for compensation.