Things went from bad to worse for a survivor of domestic violence who tried to get a court-ordered sharing of marital assets. She lost, was then charged with the crime of perjury, sentenced to home detention, and later bankrupted. Bonnie Sumner and Melanie Reid report.
A woman alleging abuse by her ex-husband was dismissed by one judge as “inherently dishonest”, manipulative and devious, then wrongly convicted by another judge of perjury over a document and sentenced to a year’s home detention, ending her career.
Sarah’s* ordeal in her marriage was surpassed by her ordeal through the justice system – in the Family Court, District Court and High Court – until three justices of the Court of Appeal quashed her conviction, declaring a miscarriage of justice and “unease over the verdict”. They questioned the reasoning and comments by the lower court judges.
The woman, whose real name is suppressed, told Newsroom the comments about her character by Family Court Judge Peter Callinicos and her ex-husband’s lawyer during and after that case over the separation of assets had amounted to “sustained hounding and bullying”. She said she was accused of using false evidence to discredit her ex-husband and labelled “inherently dishonest.”
She has described the case, which was a challenge to a separation of assets previously agreed under alleged duress, as shattering. The judge found for her ex-husband, awarding him further assets, and he won a large award of costs, ultimately leading to her bankruptcy.
Worse, at the end of the case, Judge Callinicos referred her to police for investigation for perjury over changes she had made – with twink or pen and initialling the amendments in the margins – of notes from her sessions with an ACC counsellor in which her allegations of emotional, sexual and physical abuse by the ex-husband were outlined.
Sarah has explained to Newsroom she twinked out references such as to her teenage bulimia, to a former partner and to other personal or “irrelevant” issues and gave the notes back to her lawyer who mistakenly submitted them to the court without explicitly noting they had been altered.
As the notes were attached to a sworn affidavit, Judge Callinicos regarded this as amounting to perjury, referring the matter to the police for prosecution. Sarah was convicted after a District Court hearing before Judge Warren Cathcart, who, despite not being presented with the original copy of the amended counselling notes, sentenced her to 12 months’ home detention.
At sentencing, when Sarah’s lawyer argued a conviction would prevent her working in her long-time job, a Crown lawyer argued that as she was middle-aged, the loss of her job was less important than it would have been for a younger person.
Another lawyer who later became aware of Sarah’s predicament convinced her to appeal the conviction to the High Court.
One of the appeal grounds was that Judge Cathcart ought to have recused himself “because he might not have been impartial due to his prior knowledge of the matters before the Court, in particular the Family Court’s findings of [Sarah’s] credibility,” according to the later Court of Appeal judgment.
Another was that the district court had “wrongly assessed the evidence” over its finding that Sarah’s swearing of her affidavit as a true record also applied to the attached exhibit of her amended counselling notes.
But Justice Karen Clark upheld the conviction, albeit lowering Sarah’s sentence to nine months. By then she had already served that period at home.
A rare second challenge, to the Court of Appeal, finally resulted in the perjury conviction being quashed.
Three appeal justices found the changes Sarah had made to her notes and passed back to her lawyer had no effect on the content relating to her ex-husband and his conduct. The changes were obvious, noted with comments including ‘I censored. Personal not relevant’, and did not add anything to the case against her husband.
“[Sarah’s] complaints against her husband were there prior to and after alteration,” Justice Simon France wrote, adding that for other changes, “It is difficult to see these alterations as an attempt to deceive.”
The Court of Appeal raised a “fundamental issue” over whether the perjury charge had been proved. “For [Sarah] to be guilty of perjury, she needed to make an assertion as to a matter of fact which she knew to be false, and in so doing to mislead the court.” The judges said her obvious alterations and “a plain acknowledgment by her on the face of the document that she had altered it” meant an inference she had intended to mislead was “displaced”.
The fact the district court was not presented with the original, amended notes but just a copy, meant it could not see as clearly the obvious whiteout and writing, and the Court of Appeal questioned Judge Cathcart’s view that other changes involving crossed out words and initials were made to take attention away from the twinked out segments. “We are left with some reservations of this reasoning …There were available inferences more favourable to [Sarah].”
The appeal court judges also took issue with Judge Cathcart’s description of the cross-examining of Sarah as “skilful and penetrating”, offering their view that “We see it as overall unfair and at times bullying”.
They noted that Family Court Judge Callinicos had “in strong terms, found [Sarah] to be an unreliable witness”. Callinicos had said of the altered document: “Such calculated and dishonest actions cannot go without repercussions.”
Of the District Court hearing, the appeal court said: “Judge Cathcart was as unimpressed as Judge Callinicos by [Sarah’s] evidence and dismissed it completely as unreliable.” It said Judge Cathcart criticised Sarah in his judgment for “hiding behind her lawyer and tending to blame others” but “our reading of the evidence leads us to the view that this was not merited in this context”.
Sarah says Judge Callinicos called her one of the least credible witnesses he had ever observed.
But she meets Newsroom with piles of paper spread before her, including a letter from her ex-husband talking of wanting to hurt her, and police photos taken of large bruises on her throat. There are session notes from a counsellor that disclose years of emotional, sexual and physical abuse and interviews with witnesses corroborating her claims.
At court, she had been accused of harming the ex-husband’s reputation by having disclosed the alleged abuse to three close friends.
While elated she has finally been exonerated, Sarah says her life has changed dramatically since the Judge Callinicos hearing. “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 was devastated by the judge’s comments. I continue to struggle with the court’s decisions.”
Sarah says her changes to the counselling notes were intended to make them correct, and to take out material from the counselling sessions that she regarded as irrelevant to her case with her ex-husband.
“I censored incorrect and private information, then sent it to my lawyer.” Having no legal expertise, she left it to her lawyer to decide what to include in the affidavit.
“Every time I got documents I wrote notes on them and sent them to my lawyer. Quite often I corrected things and she never said anything about not doing this,” Sarah says.
Later, at court, when a registrar asked if the information in the affidavit was true and correct, she said “Yes”. “Because it was, because I had corrected it to be true. I didn’t know that ‘true and correct’ means this is a true copy of the original.”
On being criticised in court for having shared with friends that she was being abused, she says now: “In the hearing I was hounded by the counsel. We see all these things that say if something bad is going on to tell someone, tell a close friend, but I got berated for this by both judge and counsel. I was basically told I had been spreading lies in the community and discrediting my husband.”
Sarah says she is investigating her options for compensation for wrongful conviction.
“The irony is, I’m eligible, but because my ex-husband bankrupted me any compensation will go to him.”
The lawyer who acted for Sarah to the Court of Appeal wrote in a letter to the Legal Services Agency: “[Sarah] was treated very badly by any account by the Family Court … I have been practising criminal law for … years and [Sarah’s] treatment by her former husband would have to be one of the worst examples of serious domestic violence that I have reviewed.”
The lawyer said the Court of Appeal hearing surfaced “extreme disquiet” at the unfairness of Sarah’s treatment. “The Court of Appeal quashed the perjury conviction because the act of perjury had simply not occurred.”
“[Sarah] should have been free to leave her marriage, she should have been able to secure a fair and reasonable matrimonial settlement and it is an indictment on our society that this woman has been unrelentingly tormented for … years without respite.”
Sarah’s case is just one of several Newsroom has been investigating in which women describe their treatment by the Family Court as being traumatising and abusive.
Deborah Mackenzie is co-founder of the Backbone Collective, a not-for-profit agency set up in 2017 to collect and share the voices and experiences of victims with government agencies so they can be included in any changes to our court, welfare and child protection systems.
Four years ago her organisation undertook a mission to collect the voices and experiences of women who had experienced Family Court proceedings. The results detailed cases in which judges frequently disbelieved women’s experiences of violence and abuse, or concluded that it was not considered to be very dangerous and the perpetrator didn’t pose a risk to the victim and was ‘safe’.
Mackenzie says Sarah’s case is just one of many – so many, that at times she feels overwhelmed by the number of stories: “Just when you think it can’t get worse, it does.”
*Sarah is not her real name