A v G
[2019] NZHC 2404
•23 September 2019
NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER
INFORMATION, PLEASE SEE
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IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV 2019-443-000019
[2019] NZHC 2404
BETWEEN A
Appellant
AND
G
Respondent
Hearing: 4 September 2019 Appearances:
A R H Laurenson for Appellant
No Appearance by or for the Respondent
Judgment:
23 September 2019
JUDGMENT OF DOOGUE J
Introduction
[1] The appellant, Mr A, appeals a decision of the Family Court dismissing his objection to undertake an assessment and attend a non-violence programme following the making of a Temporary Protection Order pursuant to s 13 of the Domestic Violence Act 1995 (“DVA”) in favour of the respondent, Ms G.1 The Temporary Protection Order was granted on 20 March 2018 and was subsequently made final by consent on 17 September 2018.2
1 G v A [2019] NZFC 2635.
2 Domestic Violence Act 1995, s 14.
A v G [2019] NZHC 2404 [23 September 2019]
[2] The sole ground on appeal is that the Family Court Judge erred in fact and in law in concluding Mr A accepted the allegations of violence because he consented to the Protection Order being made final.
Background
[3] The relationship between Mr A and Ms G is one of step-father and step- daughter. Mr A and Ms G’s mother have been married since October 2013. Since then, Mr A and Ms G have lived at separate addresses, save for two relatively short periods of time.
[4] On 19 March 2018, Ms G filed a without notice application in the Family Court at New Plymouth seeking a Protection Order against Mr A. She also filed an affidavit in support of that application. In her affidavit, Ms G alleged that Mr A had sexually, as well as psychologically and emotionally abused her since the age of 21; a period of around four years.
[5] A Temporary Protection Order in Ms G’s favour against Mr A was granted on 20 March 2018 by Judge Russell. The protected persons named in that order were Ms G and her son, who was six years old at the time.
[6] On 23 March 2018, some three days after the Temporary Protection Order was made, Mr A filed an objection to the direction that he undertake an assessment and attend a non-violence programme on the grounds he “[was] not a violent person” and “absolutely den[ied] assaulting the applicant in any form”.
[7]On 19 April 2018, Mr A filed a:
(a)notice of intention to appear to defend Ms G’s application for a Protection Order; and
(b)without notice application to remove Ms G’s son as a protected person from the Temporary Protection Order.
[8] In his affidavit in support, Mr A again denied he had abused Ms G in any way and repeated that he was not a violent person. Affidavits in support of Mr A’s position were filed by Ms G’s mother and the day-to-day caregivers of Ms G’s son, Ms G’s aunt and her husband.
[9] These affidavits described Ms G’s mental health issues and her history of making false allegations of sexual abuse against males, including males in her family. They also supported Mr A’s denial of Ms G’s allegations of violence towards her, her mother and her son. On the contrary, they described Mr A as a kind and loving grandparent to Ms G’s son.
[10] Standard directions were issued by the Registrar to progress matters to a defended hearing on 24 August 2018. On that day, then-counsel for Mr A filed a memorandum advising the Court that her client consented to a Final Protection Order. A Final Protection Order was made on the papers by Judge Barkle on 17 September 2018. Mr A’s objection to attend a programme was set down for a hearing on 2 October 2018. There is nothing on the Court file to indicate that the consent given was an acceptance of the veracity of the allegations made. Nor was there any notation to the effect that consent was given but subject to continued denial of the allegations made. Nevertheless, on the totality of the evidence it is a reasonable inference to draw that Mr A continued to deny the substance of the allegations against him.
[11]His objection was heard in the Family Court at New Plymouth on 5 April 2019.
Family Court decision
[12] The hearing on the objection in the Family Court commenced with Mr A giving evidence in respect of his decision to consent to the making of a Final Protection Order.
[13] Mr A stated the primary reasons for his consenting to the making of a Final Protection Order were to stop the stress caused by the proceedings on his family (particularly on his relationship with Ms G’s mother) and, equally importantly, that the effect of such an order would be to “keep [Ms G] at a distance from me and my children sort of thing”.
[14] Counsel for Mr A submitted that in determining Mr A’s objection to attend a non-violence programme, the Court ought to consider the fact no charges had been laid by the police in relation to what amounted to very serious criminal allegations despite investigation, Mr A had not made contact with Ms G for around two years and that the proceedings had placed considerable stress on Mr A’s health and his health issues would be an obstacle to his successful attendance at a programme. Further, Mr A faced financial constraints which would also impact on his ability to attend a programme.
[15] Finally, counsel for Mr A submitted that the object of the DVA (to denounce violence in domestic relationships and provide protections for victims)3 and the objective of the programme (to stop or prevent domestic violence on the part of the respondent)4 could be upheld if the direction were discharged by virtue of the fact there would still be a Final Protection Order in place against Mr A.
[16] Judge Harrison dismissed Mr A’s objection to attend a non-violence programme. This was, in part, due to the fact there was no evidence to confirm Mr A’s medical issues would impede him from attendance at a programme.5 Further, while it was accepted Mr A faced financial constraints, Judge Harrison did not consider them insurmountable.6
[17]In respect of the allegations of violence, Judge Harrison stated:
[12] The most significant factor for me in this application is Mr A's consent to the protection order being made final and him standing back from defending the allegations. On the face of it he has accepted, and it is without reservation, he has accepted the allegations that were made against him. Although he has a particular reason for consenting to the order being made in my view it does not affect the result that a protection order was made by consent and therefore there is an acceptance of the allegations.
[18]Mr A filed a notice of appeal on 6 May 2019.
3 Section 5.
4 Section 51A.
5 At [11].
6 At [13].
Relevant law
[19] I first note that these proceedings commenced prior to 1 July 2019. Therefore, the relevant legislation is the DVA rather than the Family Violence Act 2018.7
[20]The power to make a Protection Order is provided for in s 14(1) of the DVA.
The Court must apply a two-pronged test:8
(a)First, the Court must be satisfied the respondent is using or has used domestic violence against the applicant. The threshold of satisfaction does not require proof to a particular standard.9
(b)Second, if the first criterion is met, the Court must be satisfied a Protection Order is necessary for the applicant’s protection.
[21] When a Protection Order is made, s 51D of the DVA provides that the Court must direct the respondent to undertake an assessment and attend a non-violence programme unless there is no service provider available or the Court considers there is “any other good reason for not making a direction”.
[22] Where, in respect of a without notice application for a Protection Order, the Court makes an order under s 51D, the respondent may, pursuant to s 51E, object to the making of that order within 10 days. After hearing the objection, the Court may confirm, vary or discharge the direction pursuant to s 51F.
Approach on appeal
[23] Section 51F is silent as to what factors ought to be taken into account by a Judge when deciding whether to confirm, vary or discharge a direction. Accordingly, the decision to confirm a direction, as is the case in the present appeal, is an exercise of discretion.
7 The Domestic Violence Act 1995 was repealed on 1 July 2019 by s 258 of the Family Violence Act 2018.
8 Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581 at [67], reaffirmed in SN v MN [2017] NZCA 289, [2017] 3 NZLR 448 at [20]–[22].
9 See Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [26] and [96].
[24] To succeed on appeal, Mr A must show that the Family Court Judge made an error of law or principle, failed to take into account some relevant matter, took into account some irrelevant matter, or was plainly wrong.10
Appellant’s submissions
[25]Mr Laurenson for Mr A submits that Judge Harrison relied on a finding of fact
― an acceptance of Ms G’s allegations of violence ― which is unsupported by the evidence. In particular, he submits that the Judge erroneously placed significant weight on the fact he consented to the making of a Final Protection Order as evidence he accepted the allegations.
[26] Mr Laurenson also repeats the grounds advanced in the Family Court for his objection to the direction. He adds that Ms G neither sought to be heard in respect of the initial objection, nor seeks to be heard in this appeal. Therefore, he submits that Ms G does not oppose Mr A’s objection.
[27] Finally, Mr Laurenson submits that Mr A is not estopped from arguing his appeal by virtue of the fact he consented to the making of the Final Protection Order. He points to Morris v Morris in which Judge Callaghan concluded that objection proceedings and substantive proceedings are separate procedures, though are often inextricably linked.11 This is, he submits, consistent with the wording of s 51D.
Discussion
[28] As a preliminary matter, I agree that Mr A is not estopped from advancing his appeal simply because he consented to the making of a Final Protection Order. In addition to the guidance provided by Judge Callaghan in Morris, there is no suggestion in s 51F that the Court’s power to confirm, vary or discharge a direction is qualified in situations where a respondent consents to the making of a Final Protection Order. All that is required to invoke s 51F is for the correct procedure in s 51E to be followed.
10 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32] per Blanchard, Tipping and McGrath JJ.
11 Morris v Morris (1997) 16 FRNZ 472 (FC) at 476.
[29] Nevertheless, there is a high threshold for establishing a discharge of a direction to attend a programme is appropriate, particularly given this direction occurs by operation of law unless the Court considers there to be good reason to discharge the direction, or there is no available programme provider. This is because the object of the DVA ― and now the purpose of the Family Violence Act 2018 ― is to denounce violence in domestic relationships and provide protections for victims.12 One of the ways this is achieved is by providing education to respondents against whom a Protection Order has been made on the adverse impacts of violence and how they can recognise in themselves signs of poor impulse control and learn to regulate their behaviour so as not to cause harm against the protected or any other person.
[30] It is therefore imperative that a respondent who objects to a direction to attend a non-violence programme brings strong evidence to support the objection. If directions to attend a programme were readily discharged by mere denials of allegations of violence alone, it would undermine the purpose of the legislation.
[31] It is clear from the Family Court decision that Judge Harrison considered the evidence in respect of Mr A’s health issues inadequate to support his objection. Further, the Judge did not consider that Mr A’s financial constraints prevented him from attending a non-violence programme. I too am satisfied, both on the evidence that was before the Family Court as well as the evidence before me in this appeal, that the Judge was correct in her conclusions on these matters. Mr A’s objection to attend a programme on the basis of his health issues was not advanced any further before me, nor do I consider his financial constraints to prevent him from travelling to and attending a programme.
[32] The only real issue then is Mr A’s objection to attending a programme based on his continued denial of the allegations of violence made against him. It was Mr A’s consent to a Final Protection Order being made that satisfied the Judge his objection should be dismissed. The Judge observed that the consent was made “without reservation” and therefore amounted to “an acceptance of the allegations”.
12 Domestic Violence Act 1995, s 5(1); Family Violence Act 2018, s 3(1).
[33] The fact a Final Protection Order was made in this case in reliance on Mr A’s consent is proof the Court was satisfied the criteria for making a Protection Order in s 14(1) of the DVA were fulfilled.
[34] It appears Mr A’s point of appeal can more aptly be characterised as an objection to the making of the Final Protection Order on the basis the Family Court ought not to have been satisfied on the evidence before it that the Protection Order should be made. It cannot, however, be appropriately characterised as a valid objection to attendance at a programme.
[35] What may have avoided these proceedings from taking place would have been some sort of clear qualification in Mr A’s memorandum of consent, to the effect that while he was consenting to the making of the Final Protection Order, he was unequivocally maintaining his denial of the allegations of violence made against him. This would have, at the very least, put the Family Court on notice and would have resulted in greater scrutiny being applied to whether the two criteria in s 14(1) of the DVA were in fact satisfied. In the absence of such a qualification, Mr A’s memorandum of consent had the effect of negating his continued denial of the allegations.
[36] If I were to discharge the Family Court Judge’s direction that Mr A attend a non-violence programme based on his continued denial of the allegations of violence against him, I would in effect be concluding that the Final Protection Order was invalid. The appropriate forum for such a determination is an appeal against the making of the Final Protection Order itself, not an appeal against a direction made under s 51D of the DVA. Accordingly, Mr A’s appeal must be dismissed.
Result
[37]The appeal is dismissed.
Doogue J
Solicitors:
Govett Quilliam, New Plymouth
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