AA v BB
[2015] NZHC 3330
•18 December 2015
NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995
AND S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CIV 2015-441-82 [2015] NZHC 3330
UNDER the Domestic Violence Act 1995 IN THE MATTER
of an appeal against a decision of the
Family Court at NapierBETWEEN
AA Appellant
AND
BB Respondent
Hearing: 14 December 2015
(Heard at Wellington)
Counsel:
P A Fairbrother for Appellant
J F McDowell for Respondent
C M Hickman, counsel for the childrenJudgment:
18 December 2015
JUDGMENT OF BROWN J
Introduction
[1] On 6 May 2015 Her Honour Judge Pidwell made a temporary protection order under s 14 of the Domestic Violence Act 1995 (the Act) against the respondent protecting the appellant and the parties’ two children. Her Honour also made an interim parenting order granting day to day care of the children to the appellant,
which was the subject of a variation order on 22 July 2015.
AA v BB [2015] NZHC 3330 [18 December 2015]
[2] The respondent filed a notice of intention to appear under s 76 of the Act. Consequently a hearing was convened on 22 July 2015 following which Judge P J Callinicos delivered a decision discharging the protection order. This hearing addresses the appellant’s appeal from that decision.
The decision
[3] The decision first identifies the three essential criteria in s 14(1) of the Act to be addressed in determining whether a protection order should be made or continued and the decision in Surrey v Surrey1 and Q v Q [Domestic Violence]2 before turning, to use the Judge’s words, to explore in depth the range of factors in the parties’ complex relationship that had led to the hearing.3
[4] The decision carefully reviews the history of domestic violence in the parties’ relationship4 before proceeding to address what the Judge described as the all important consideration of necessity, noting that the onus was on the respondent to establish factors to show that there is no ongoing necessity.5
[5] Under the heading “Necessity for an Order” the issues discussed in the
decision include:
(a) the fact that there was no physical violence either raised in evidence or established by it since 2009 and certainly none in the past year;
(b)there was ongoing mutual verbal abuse between the parties, often triggered by alcohol and the inherent dysfunction in their relationship;
(c) the fact and consequences of the respondent taking himself off his opiate-based medication for his serious back pain;
(d) the respondent’s attempted suicide;
1 Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581, [2010] NZFLR 1.
2 Q v Q [Domestic Violence] [2012] NZHC 1448, [2012] NZFLR 582.
3 At [7].
4 At [9]–[32].
5 At [33].
(e) the discovery by the appellant of the respondent’s 15 page written document (the Notes).
[6] The respondent’s attempted suicide and the Notes were the impetus for the appellant’s application for a temporary protection order. Prior to those events the parties’ situation was noted by the Judge as follows:
[34] It is at this point that I discuss the event which triggered the application. As indicated, the parties had ceased living together in December 2013, but continued a very close and often intimate domestic relationship. The children were often at [BB’s] home and often he would be caring for them. He the received a sentence of home detention and during that time he lent his vehicle to [AA].
[35] She would often stay for weekends and would be at the house on average at least once a fortnight, sometimes more. There was ongoing mutual verbal abuse between them, again often triggered by alcohol and the inherent dysfunction in their relationship. But there was no physical violence either raised in evidence or established by it since 2009 or so, and certainly none over the past year.
[7] The Judge then relates the sequence of events around Easter 2015 culminating in the respondent’s attempted suicide by overdose and the fact that he survived by the appellant’s intervention via his neighbours.
[8] The judgment proceeds to analyse the Notes and their implications for the appellant:
[40] When in hospital [AA] found a 15 page document written by him.
This document was in some instances referred to as a letter. Quite clearly it was not a letter in the sense it was not a document prepared
by a person for the communication to another. It was not a suicide
letter as such, rather it was a series of notes written by [BB], initially at the recommendation of a counsellor, as a way to express his
feelings and deal with his deep feelings and emotions. The
circumstances and content of that lengthy document support his version that is what it is. The notes of his feelings were private. He had on one occasion sought to discuss them with Ms Jackson, that is [AA’s] child carer, and [AA] got to learn of them.
[41] Although there are many comments in that letter which are critical of [AA], it is not a letter of vitriol directed to her as such. The notes were taken from a drawer in [BB’s] house without his consent. When those notes were read by [AA] they formed the basis upon which she sought a temporary protection order and also from the basis as to why she argues necessity for an ongoing order.
[42] I can accept that at the time when [AA] read those notes that she would have been very concerned for her safety and the safety of her children. I am in no doubt indeed [BB] accepts that, at that point in time, [AA] was entitled to be concerned. The notes show the depth of [BB’s] distress over not merely his relationship, but a range of life issues confronting him.
[43] What the notes demonstrate is that while he had a very negative view of how [AA] treated him, there was clearly no intention within those notes of harming her. Likewise there was not the slightest intention of [BB] harming his daughters. Rather, he was distressed at the thought of how his death could hurt them and he realises in hindsight that his death would have caused immense distress to them. The fact of his attempted suicide would have been very painful for them. But, in terms of whether there was an intention to go out and harm them as such, the notes actually confirm the converse to be the case.
[44] The notes are a distressing catalogue about how a human being can feel so lowly about themselves to a point where they see only one avenue of solution. The most significant point is they do not indicate any intention to harm any person other than himself. I emphasise at the time it is understandable and reasonable why the applicant saw the notes as a concern to her. But, the important question is, after having the benefit of standing back and looking at what led to this, whether any events since those notes and attempted suicide lend any support for an ongoing concern that [BB] poses any harm to the applicant or the children as protected people. The short answer is no.
[9] The decision then carefully reviewed the views of a very experienced psychiatrist, who had treated the respondent, and the respondent’s change in circumstances, including the fact that the respondent no longer had any identifiable addiction to opiate mediations and that he was undertaking an intensive rehabilitation programme called an MIRP programme. The Judge concluded:
[55] In summary therefore in considering matters of necessity I have had regard to the perception of the applicant. She still feels at risk and this derives largely from the notes and the suicide attempt. I can understand that this is a reasonable subjective fear but, objectively measured against all factors, I do not believe that the perception is sustained.
[56] With regard to the perception of the children those views must be taken into account, Ms Hickman has reported those views. The children love their father and wish to see him. They would prefer that there be someone else present. [CC] for instance knew the father had taken too many pills and seems to be reasonably attuned to some of the events which will have been unquestionably distressing for her and probably shape why she feels someone else might be present.
[57] The important aspect is that the pattern of the parties’ relationship, the dysfunction of it and the precipitating use of alcohol and drug dependency have for [BB’s] perspective clearly been broken now. The pattern which has led to ongoing discord has ceased. The fact that it took a traumatic event to do that is unfortunate but there are some bright sides to it.
[58] In conclusion there is no necessity established for an ongoing order. I do have a residual concern that if an order were to continue it could potentially be used as a weapon, because [AA] unfortunately does have her life issues that she needs to address as well. I am certain that if she tackles issues of alcohol she too will show herself to be an incredibly capable mother to her children. Again, I emphasise that in referring to the parties’ issues I am not been demeaning of them, I am wanting to support them through to achieve their real potential.
The appeal
[10] An appeal from that decision to the High Court lies under s 91 of the Act. The approach of the High Court on appeal was explained by the Court of Appeal in Surrey v Surrey:6
[67] There is a two-pronged test in s 14(1) of the DV Act: see Appendix One at [90]. Both limbs must be satisfied before a court can issue a protection order. There must first be a factual finding that the respondent is using or has used domestic violence against the applicant, or a child of the applicant’s family, or both. “Domestic violence” is defined widely under s 3 of the Act: see at [88]. Any factual finding of this nature would be reviewable on ordinary appellate principles, as outlined in Austin, Nichols. When reviewing factual findings of this nature, however, an appellate court will need to be cognisant of any advantage the judge appealed from has had from seeing and hearing the witnesses: see discussion in R v Munro at [73]-[84]. In this case, as noted above at [2], the factual findings of Judge Costigan as to past violence were not, however, challenged on appeal and so Fogarty J was not called upon to revisit them.
[68] Under the second limb of s 14(1), there must then be a finding that the making of an order is necessary for the protection of the applicant, or a child of the applicant’s family, or both. This is an evaluative decision made by the Judge, taking into account all relevant factors: see at [38] above. We consider that Fogarty J was correct to categorise the issue of necessity as a discretionary decision for appellate purposes and thus as one that is not subject to the Austin, Nichols analysis: see Blackstone v Blackstone [2008] NZCA 312, (2008) 19 PRNZ 40 at [8].
[69] This means that to succeed in an appeal, an appellant must show that the judge acted on a wrong principle, that he or she failed to take into account some relevant matter, that he or she took account of some irrelevant matter, or that he or she was plainly wrong – that is, that the judge could not legitimately have come to the conclusion that he or she did. Treating the decision as to whether a protection order is necessary as discretionary is
6 Surrey v Surrey, above n 1.
consistent with the requirement in s 5(2)(b) of the DV Act that matters should be dealt with expeditiously.
[11] The appellant filed a notice of appeal against the decision of Judge Callinicos on 18 August 2015. The following grounds of appeal were recited:
3.1 The Judge acted on a wrong principle.
3.2 The Judge failed to take account of some relevant matter, as follows:
3.2.1 [BB] had only relatively recently become drug free.
3.2.2[BB] gave conflicting evidence that he had become alcohol free, but also that he had recently consumed alcohol on the event of his Home Detention ending.
3.2.3[BB] had only recently finished his Home Detention which had restricted his ability to use drugs and alcohol.
3.2.4[BB] had not had any counselling for the sexual abuse which had occurred in his childhood, and which he had admitted had caused him serious issues throughout his life.
3.2.5 [BB] had only recently been discharged from the Mental
Health system.
3.2.6[BB] had not yet commenced treatment at the pain clinic to address pain issues (pain issues having been one of the primary factors leading to his suicide attempt).
3.2.7[BB] had only completed around one week of his Medium Intensity Rehabilitation Programme and there was no report of his participation on it.
3.2.8The Judge refused to admit evidence of text messaging between the Applicant and the Respondent during the relevant period immediately leading up to his attempted suicide.
3.3 The Judge took account of some irrelevant matter, as follows:
3.3.1 The Applicant’s abuse of alcohol.
3.3.2 The Applicant’s participation in domestic violence.
3.4The Judge was plainly wrong in determining that the Protection Order was not necessary due to the Applicant’s perception of a reasonable subjective fear not being sustained.
3.5Any on the further grounds to be filed once the Notes of Evidence are served on Counsel.
[12] The formulation of these grounds reflects the judicial approach on appeal in relation to the second limb of s 14(1) as explained in Surrey v Surrey.
[13] Notwithstanding that all parties’ submissions appeared to proceed on the basis that the Surrey v Surrey approach applied, Ms Fairbrother’s submissions also commented:
The Supreme Court case of Kacem v Bashir makes it clear that even though there are these more limited grounds for challenging a discretion, an Appellant is entitled to judgment in accordance with the opinion of the Appellant Court, even when that opinion involves an assessment of fact and degree and entails an evaluative Judgment.
[14] In the light of that observation, there was some discussion about whether the Surrey v Surrey approach to the second limb should be revisited in the light of Kacem v Bashir, with both Ms Fairbrother and Mr Hickman appearing to lean more in the Austin, Nichols direction.
[15] It is important to note what was said in Kacem v Bashir:
[32] But, for present purposes, the important point arising from Austin, Nichols is that those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion involves an assessment of fact and degree and entails a value judgment. In this context a general appeal is to be distinguished from an appeal against a decision made in the exercise of a discretion. In that kind of case the criteria for a successful appeal are stricter: (1) error of law or principle; (2) taking account of irrelevant considerations; (3) failing to take account of a relevant consideration; or (4) the decision is plainly wrong. The distinction between a general appeal and an appeal from a discretion is not altogether easy to describe in the abstract. But the fact that the case involves factual evaluation and a value judgment does not of itself mean the decision is discretionary. In any event, as the Court of Appeal correctly said, the assessment of what was in the best interests of the children in the present case did not involve an appeal from a discretionary decision. The decision of the High Court was a matter of assessment and judgment not discretion, and so was that of the Family Court.
[16] In my view Kacem v Bashir distinguishes between an appeal of the Austin, Nichols rehearing variety and an appeal against a discretion. Mindful of the observations in Q v Q7 and in AB v ST,8 I do not consider that there is some form of
hybrid appeal of the nature which I consider the appellant’s submission
7 Q v Q (Domestic Violence), above n 2, at [13].
8 AB v ST [2011] NZFLR 669 (HC) at [31].
contemplates. Hence the invitation which I infer the appellant and Ms Hickman necessarily issue is not merely to introduce some refinement into the accepted discretionary decision analysis but rather to conclude that an appeal against a finding on the necessity issue is not a discretionary decision but of an Austin, Nichols character.
[17] It may be the case that in the light of Kacem v Bashir the Court of Appeal may choose to revisit its view in Surrey v Surrey at [68]–[69]9 and come to the opposite conclusion, namely that Austin, Nichols should apply to both the first and second limbs of s 14(1). However the Surrey v Surrey decision is comparatively recent (albeit one year prior to Kacem v Bashir) and the Court of Appeal’s decision is specifically focused on the issue of the proper appellate approach to the s 14 questions. The view stated could not be described as passing or tangential. Consequently I consider that I am bound to apply that approach rather than electing
to decline to follow it on the basis that it is impliedly overruled by the general observation in Kacem v Bashir.
Analysis
[18] The focus of argument on appeal was the Judge’s conclusion concerning the significance which should be attached to the perception of the appellant. The appellant’s perception is a mandatory consideration specifically addressed in s 14(5) of the Act:
(5) Without limiting the matters that the Court may consider when determining whether to make a protection order, the Court must have regard to–
(a) The perception of the applicant, or a child of the applicant’s family, or both, of the nature and seriousness of the behaviour in respect of which the application is made; and
(b) The effect of that behaviour on the applicant, or a child of
the applicant’s family, or both.
9 At [10] above.
[19] With reference to s 14(5), the Court of Appeal in Surrey v Surrey observed:
[118] The next decision referred to by the parties was K v G [Protection Order] [2009] NZFLR 253 (HC). In that case Priestley J, relying on the decisions of Takiari v Colmer and A v B, set out, at para 38, the following summary of the legal test:
(a) Whether a protection order is necessary requires consideration of all relevant factors.
(b) It is an error to use the mandatory s 14(5)(a) requirement as a fulcrum for a case.
(c) Despite s 14(5)(a), the Court needs to assess the reasonableness of the subjective perception of an applicant.
(d) Whether or not a protection order is necessary is an objective exercise, informed by a number of factors, including the subjective perception of an applicant. That perception, however, is not the only relevant factor.
(e) It is not always sufficient to ground a protection order on the fact that such an order will give an applicant peace of mind. It is not Parliament’s intention that protection orders should be used to protect people from unrealistic and unreasonable fears.
[119] We consider this a useful summary of the principles, although, where an applicant’s subjective fears are reasonable, it would not necessarily be an error to use the mandatory s 14(5)(a) requirement as a fulcrum for a case. While it is not Parliament’s intention that protection orders should be used to protect people from unrealistic and unreasonable fears, it is Parliament’s function that they can be used to protect people from reasonable fears. Further, it may well be reasonable to have fears for the future solely on the basis of past behaviour, depending upon the nature and seriousness of that past behaviour and whether there has been a pattern of such behaviour, as Parliament has recognised in s 14(3) and s 14(5)(a).
[120] It is also important to remember that a further mandatory consideration under s 14(5)(b) is the effect of past violence on the victim. The more serious the effect of the past violence, the more grounds there may be for the Court to grant a protection order in order for the applicant to feel safe in the future. All that is meant by the fulcrum remark is that the subjective views of the victim should not be the sole criterion where there are other relevant factors to be considered and/or where an applicant’s subjective views are unrealistic or unreasonable (but this must be assessed in light of our comments at paras 101 and 102 above).
[20] Judge Callinicos accepted at [42] that at the time the appellant read the Notes when the respondent was in hospital, she would have been very concerned for her safety and the safety of her children. The Judge further accepted at [55] that the
appellant still felt at risk, a state which derived largely from the Notes and the suicide attempt. But as recorded above, he concluded:10
I can understand that this is a reasonable subjective fear but, objectively measured against all factors, I do not believe that the perception is sustained.
[21] As the appellant’s submissions acknowledged, primary emphasis was placed on the fourth basis of challenge to a discretionary decision:
The main thrust of the Appellant’s Appeal is that the Judge was plainly wrong in determining that the Protection Order was not necessary due to the reasonableness (on an objective standard) of the Applicant’s perception of the violence not being sustained, and due to mitigating steps having been taken by the Respondent.
[22] The impression which I gained from the appellant’s submissions is that she is not yet convinced that the respondent’s change in circumstances is stable and enduring. That is reflected in the submission made for the appellant that she needs further information to reassure her and that compiling that information would take some time. Her submission stated:
59.Counsel submits on behalf of the Appellant, that she still does not have sufficient independent information which would reassure her in respect of the following concerns:
(a) Whether the Respondent can manage his back pain in an ongoing healthy way.
(b) Whether the Respondent can maintain his addiction-free state.
(c) Whether the Respondent’s historical sexual abuse will again affect his state of mind, given that he states that he is having no personal counselling for it.
(d) Whether the Respondent has had sufficient education in respect of Family Violence through his attendance at the Medium Intensity Rehabilitation Programme, so that he will not engage in further Family Violence.
60.The Respondent is able to provide this evidence in the following ways:
(a) He can provide three-monthly hair-follicle drug test results to show that he is maintaining his drug-free state.
10 At [9] above.
(b) He can provide a report from the pain clinic to confirm his attendance and engagement in that process, and the steps to be taken by him to manage his pain in an ongoing way.
(c) He can undertake counselling for his personal issues.
(d) He can provide an assessment by a Family Court approved provider of Anti-Violence programmes to state that he has achieved a satisfactory knowledge of Family Violence through the programme directed under his sentence.
61.Counsel submits that it would not be unusual for the work to be undertaken by the Respondent to show that he has achieved a sustainable change, to take upwards of 12 months.
[23] Ms Fairbrother submitted that the risks to the appellant and to the parties’ children are real and provide a high level of concern “if the respondent is not able to maintain the changes he states that he has made since April of this year”.
[24] Hence an issue for Judge Callinicos was an assessment of the likelihood of the respondent maintaining that state of change. After discussing the contents of the psychiatrist’s letter and the changes of circumstances noted above at [9], which included the observation that it was very clear from the evidence that the respondent had gained considerable insight into his life in general, the Judge recorded his assessment of the respondent in these terms:
[53] In my observation of [BB] he was an intelligent, considered, articulate and insightful witness who has a very good grasp on where he is at. He has a good understanding of the cumulative factors that have triggered unfortunate events in his life, including the family violence. I was left with the distinct impression that he was a person who has emerged from years in a dark and narrowing tunnel, one which almost took his life. The evidence was strong and showing that if he maintains abstinence from opiate medications and manages his back pain, and has an open and ongoing relationship with his children that he will never be a risk to anyone, including himself.
[54] With regard to the management of his back pain, he is due to go to a pain clinic which involves a psychiatrist, physiotherapist and an anaesthetist to look at alternative ways of managing his pain without resorting to drugs which might trigger the return of dependency. The evidence was strong that while he has immersed the children into the dysfunctional and violent relationship with [AA] in the past, he is otherwise a very capable and loving father.
[25] The Judge noted that the respondent was incentivised for the time being to maintain his more positive state:
[59] Another factor is that [BB] has some nine months or so to run on the probationary period following his home detention. There is a huge incentive upon him not to find himself slipping back into old habits, because given he has been on home detention, any conviction for anything at this stage would probably see him incarcerated. …
[26] It is evident that the Judge’s conclusion that a protection order was no longer necessary was reached after weighing both the appellant’s perception and the respondent’s changed circumstances. The difference between the appellant and the Judge appears to lie in the degree of confidence which each had as to the respondent’s ability to sustain his improved state. On that issue I am mindful of the distinct advantage which the Judge had in being able to hear and observe the parties giving their evidence.
[27] I agree with Mr McDowell’s submission that the findings of fact made by the Judge were open to him and that the substance of the appeal is that the appellant disagrees with those findings of fact and the credibility findings made by the Judge. It is not possible in my view to conclude that the Judge’s finding that the protection order was no longer necessary was one which the Judge could not legitimately have reached. The appellant’s challenge to the decision falls well short of satisfying me that the decision was plainly wrong.
[28] So far as the other grounds in the notice of appeal are concerned, I understood Ms Fairbrother to accept that the Judge had correctly directed himself on the applicable legal principles and hence the first ground, that the Judge had acted on some wrong principle, was not pressed. Nor was it shown that the Judge had failed to recognise the various matters listed in grounds 3.2.1 to 3.2.7.
[29] So far as the ground in 3.2.8 is concerned, the complaint about a failure to admit evidence of text messaging is really an evidential challenge rather than an instance of a failure to have regard to a relevant consideration. However I am satisfied by Mr McDowell’s explanation about the Judge’s admissibility ruling concerning the timing of that evidence that there is no proper basis for attacking the decision on that account.
[30] The two matters which it is said that the Judge took into account and which were asserted to be irrelevant both related to the conduct of the appellant, namely her alleged abuse of alcohol and her own alleged participation in domestic violence. These matters were focused upon by Ms Hickman in particular, who was critical of what she described as a mutualising of the domestic violence.
[31] It is true that the Judge referred to the appellant’s difficulties with alcohol at a number of points in the decision. Those references were primarily in that part of the decision reviewing the history of domestic violence (eg at [14]–[17] and [20]). From my reading of the decision, the appellant’s behaviour with reference to alcohol abuse and participation in domestic violence were not factors in the conclusion on the necessity or otherwise for an order.
[32] That is not to say that the appellant’s behaviour was ignored in that context. On the contrary, the Judge referred at [18] to the observations of two neighbours, whose evidence he found insightful into the dynamics between the parties (at [13]), that the appellant could use the respondent’s relationship with the children as a power control mechanism. That is a matter which the Judge revisited at [58] following his conclusion on the necessity issue. However no challenge was made in the grounds of appeal to his reference to that consideration. I do not consider that there was error of the nature raised in ground 3.3 of the notice of appeal.
[33] For the reasons explained above I do not consider that there was any error of the nature described in Surrey v Surrey which would justify this Court revisiting the exercise of the Judge’s discretion to decline to extend the protection order. Consequently the appeal is dismissed.
[34] If issues as to costs arise, they can be raised in memoranda.
Brown J
Solicitors:
Fairbrother Family Law, Napier
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