AJD v SED

[2013] NZHC 3154

NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995, 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 AUCKLAND REGISTRY

CIV-2013-404-003714 [2013] NZHC 3154

UNDER  Section 91 of the Domestic Violence Act

1995

IN THE MATTER OF       an appeal from the decision of the North

Shore Family Court

BETWEEN  AJD Appellant

ANDSED Respondent

Hearing:                   27 November 2013

Appearances:           N Taefi for Appellant

Respondent in Person

Judgment:                28 November 2013

JUDGMENT OF VENNING J

This judgment was delivered by me on 28 November 2013 at 4.30 pm, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Rhonda G Evans, Auckland

Copy to:            N Taefi, Auckland

Respondent

AJD v SED [2013] NZHC 3154 [28 November 2013]

Introduction

[1]      Following a defended hearing in the Family Court at North Shore Judge J A Walker made a final protection order in the respondent’s favour against the appellant. The appellant appeals against the decision.

Background

[2]      The  parties  were  formerly  in  a  relationship.    They  have  a  12  year  old daughter who is subject to a shared care arrangement.   Although they have been separated for some time they currently live in properties that are adjacent to each other. There are further proceedings before the Family Court concerning relationship property. Those proceedings are to be heard next year.

[3]      In 2011 the respondent applied for a protection order.   While denying the need for an order, the appellant filed an undertaking with the Court on 21 July 2011. As a result, the matter was taken no further at that time.

[4]      However, following a number of further incidents the respondent applied again for a protection order on 12 March 2013.  A temporary protection order was made on 13 March 2013.   Following the hearing before Judge Walker on 10 July

2013, the final protection order was made.

The Family Court decision

[5]      Judge  Walker  concluded  that  the  appellant  had  used  domestic  violence, namely psychological abuse by posting messages on Facebook and internet blogs that were abusive of the respondent.   She then noted that the appellant had only taken action to take the offending statements down as late as the week before the hearing.   She considered the order necessary, taking into account the parties lived next to each other, and given the tension between them particularly because of the relationship property proceedings.

Approach to the appeal

[6]      There are two approaches to an appeal against a protection order made under the Domestic Violence Act 1995 (the Act).  The Judge’s factual finding that domestic violence has occurred is subject to ordinary appellate principles bearing in mind the advantage the trial Judge has had in seeing the witnesses give evidence.1

[7]      The  second  aspect,  the  decision  that  it  was  necessary to  make  the  final protection order is, however, a discretionary decision for appellate purposes.  On that issue it is for the appellant to show that Judge Walker acted on a wrong principle, failed to take into account some relevant matter, took into some irrelevant matter, or was plainly wrong.2

The grounds for appeal

[8]      Ms Taefi submitted the Family Court Judge had erred in the following ways:

(a)      by failing to correctly take into account and/or to determine correctly whether  the  appellant  was  using  or  had  used  domestic  violence against the respondent;

(b)in fact and law by failing to determine or incorrectly determining whether the respondent’s alleged subjective fear of future violence was reasonable;

(c)      in law by failing to take into account and/or place sufficient weight on the following relevant matters:

(i)       that the respondent had consensual contact with the appellant;

and

(ii)whether  the  alleged  violence  was  a  one-off  event  with  no lasting threat of future abuse;

1      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

2      Surrey v Surrey [2010] 2 NZLR 581; and May v May [1982] 1 NZFLR 165 at 169.

(d)in law by misapplying the legal principles established in the decision of Surrey v Surrey.

Preliminary matters

[9]      Ms Taefi sought leave to adduce the further evidence of Ms Hills, which discloses the results of internet searches for the respondent’s name.  I granted leave as it is evidence from a legal secretary and non-controversial.  Ms Taefi also noted that, in her submissions, the respondent referred to evidentiary matters that were not before the Court.  I noted that objection.

Discussion

The findings of domestic violence

[10]     Ms Taefi submitted that the Judge had failed to make a definite finding that the appellant was using or had used domestic violence.   However, at [29] of the judgment the Judge made an express finding that the appellant had used domestic violence in respect of psychological [abuse] by “posting these matters”, a clear reference to the appellant’s postings, namely the messages on Facebook and the internet blogs that were abusive of the respondent.

[11]     Ms Taefi pointed out that at [37] and [38] Judge J A Walker then went on to state:

[37]     In respect of a pattern of behaviour it is difficult to attribute what matters relate to [the appellant].

[38]     I have identified a couple but I am not able to say that all of these matters that [the respondent] has ascribed to him have been the result of his actions.  However, I think it is important that while they await the decisions in respect of property, they do maintain proper boundaries so that there is no reoccurrence of instances of this sort.

[12]     However,  I do  not  read  those  passages  as  derogating  from  the  previous finding that the appellant had used psychological abuse against the respondent.  By that stage of the judgment the Judge was considering the second leg of s 14, namely whether it was necessary to make a protection order.

[13]     The next paragraph, [39], confirms that.  In that paragraph the Judge refers to the need to look at historical violence.   That is a matter to be considered when assessing whether the order is necessary.  As the Court of Appeal noted in Surrey v Surrey3 approving Hammond J in Doyle v McEwen,4 the risk of future violence is to be judged on the basis of past violence which is, by implication, required by the Act. I reject the submission that Judge Walker failed to make a finding of domestic

violence.

Does the appellant’s conduct amount to domestic violence?

[14]     Next Ms Taefi submitted the appellant’s conduct does not, in any event, amount to domestic violence in terms of s 3 of the Act, so that the Judge’s finding was  wrong.    While  accepting  that  violence  includes  psychological  abuse  and s 3(2)(c) of the Act provides that psychological  abuse includes intimidation and harassment, Ms Taefi submitted that the evidence did not support a finding of psychological  abuse.    She  referred  to  the  Family Court  decision  of  Westcott  v

Schoeler where Judge Moss had stated the behaviour must:5

have at least some elements of the items listed in s 3(2)(c) of the Act, or behaviour which, viewed objectively, taking into account the outlook of the applicant, [sic] the purpose and effect of creating or sustaining an abusive power and control dynamic, whereby the victim is subjected to the imposed will of the abuser to such an extent that the victim perceives he or she is unable to assert his or her own wishes.

[15]     Ms Taefi submitted that the Judge was required to determine whether the posts were an abuse of power or an exploitation of the respondent’s emotional or psychological vulnerability or designed to unsettle, antagonise, offend, annoy, provoke or worry her.  No such finding was made.

[16]     As noted, s 3 identifies, at (c)(i) to (v) specific types of psychological abuse. However, as the introductory words of the subsection confirm, they are not the only, exclusive forms of psychological abuse.  Judge Moss’ comments above address the

type of other behaviour which could amount to psychological abuse.

3      Surrey v Surrey, above n 2, at [112].

4      Doyle v McEwen [2001] NZFLR 23 (HC) per Hammond J.

5      Westcott v Schoeler (2001) 20 FRNZ 381 at [16].

[17]     There is no need to put a gloss on words such as intimidation or harassment. As Miller J acknowledged in M v M:6

[21]      I accept that in many — perhaps most — cases, psychological abuse will involve an attempt to establish or exploit a relationship characterised by control over the protected person. However, the Legislature has not defined the term in that way.  It is doubtful whether any single definition could encapsulate all forms of behaviour affecting the protected person's emotional or mental state, still less the circumstances in which such behaviour will amount to abuse. ...

...

[23]     But the domestic context is all-important. The term “psychological abuse” in the Domestic Violence Act has a far more extensive meaning than harassment, reflecting the Legislature's concern to control domestic violence in all its manifestations. And “harassment” in ordinary usage is not confined to behaviour that causes the victim to fear for his or her safety. According to the Oxford English Dictionary (cited above), it means “vexation, worry”

[18]     In this context, I refer to the matters the appellant admits to. They include:

Writing a letter to Ms D’s father on 19 December 2011 in which he says “To the dirty rotting deceitful D’s” and “May you slowly rot in hell”.  This was

subsequently posted on a blog.

Making  an  allegation  of  fraud  to  the  police  in  March  2012  against  the respondent in  respect of cheques not  countersigned  by him.  The police

interviewed the respondent and found no case to answer.

Parking his car in the shared driveway on 8 April 2012.   The police were

called.

Placing his garden bag against the side of the respondent’s house.

Posting blogs concerning the dispute between the parties and referring to the respondent as “modern day Delilah”, “dark as night” and “a serial accuser” in January 2013 and March 2013;

posting on his Facebook page on 2 March 2013 “if you are not nice to me, I am going to make things really bad for you” – the appellant’s explanation is he was quoting the respondent’s threat to him before he was served with a

protection order on separation;

posting a blog on 10 March 2013 in which he referred to the respondent as

“treacherous,  devious,  malicious,  lying,  sulking,  $$$  stealing,  personal property, purloining, protection order abuser/applicant”;

posting on his Facebook page on 3 March 2013 and 11 March 2013 posts that

referred to the respondent as a “serial accuser”;

taking a photograph on 11 March 2013 of the respondent out of the window of his house – the appellant’s explanation is that he did so as evidence she

had taken his tools;

posting on his Facebook page on 19 March 2013 “standing on my porch

February 2001 telling me that you are 3 months pregnant quote – XXX “I am a nice person” XXX BS”.

[19]     Ms Taefi submitted that the appellant had posted the blogs and Facebook messages because he was severely frustrated no-one was listening to him.  The test however is not the respondent’s motivation.  The position is looked at from the point of view of the victim of the psychological abuse, in this case the respondent.  It is her

perception and the effect of the appellant’s behaviour on her that is relevant.7

[20]     Ms Taefi then suggested that the Judge had not expressly found the appellant intended the respondent to see the blogs/postings.  I infer that he did.  The various posts, particularly the last, of themselves refute the suggestion that the appellant had no intention they would come to the attention of the respondent.  They are personal attacks on her and her family.   The use of the language in the last post suggests clearly that he was effectively communicating with her and directing the communications to her.

[21]     Further, it is clear on the evidence that the posts came to the attention of the respondent.  That is an answer to the further evidence of Ms Hills.  In any event, Ms Taefi properly conceded, it can be enough if the abusive messages are directed “at” rather than directed “to” the victim.

[22]     Generally Ms Taefi sought to minimise the effect of the appellant’s behaviour suggesting  for  example  that  parking  in  the  shared  driveway  was  comparatively minor.  However, as the Judge noted, the incident involving the car in the driveway in April 2012 led to the respondent calling the police.  It took half an hour to three quarters of an hour of talking to the respondent for him to move the car.

[23]     Further, I note that ss 3(4) and 3(5) of the Act confirm a number of acts forming a pattern of behaviour may amount to abuse even though, when viewed in isolation, they may appear trivial or minor.  Nor does the behaviour have to involve actual or threatened physical or sexual abuse.

[24]     The Judge was correct to make the finding the appellant had psychologically abused the respondent.

Was an order necessary – was the respondent’s subjective fear of further abuse

reasonable?

[25]     In Surrey the Court of Appeal considered what was required to satisfy the requirement under s 14(b) of the Act that an order was necessary.  The Court held that the assessment of necessity requires a broad based assessment of a need for protection in the future, having regard to the objects of the Act, and the statutory

factors set out in s 14 as well as any other relevant factors.8

[26]     The level of risk of future violence is obviously a relevant factor in assessing whether an order is necessary. The scheme of the Act envisages the Court will assess the risk of domestic violence on the basis of past conduct informed by the subjective

views of the victim and any other relevant factors.9

8      Surrey v Surrey, at [38].

9      At [39]–[42].

[27]     Ms Taefi submitted that the Judge failed to determine or explain why the respondent had a reasonable subjective fear of future violence.  Apart from noting that the respondent took the behaviour seriously the Judge did not make an objective assessment as to the nature of the behaviour complained of, nor as to whether, based on an objective test, the respondent’s subjective fear of future domestic violence was reasonable.   She submitted that the behaviour complained of was comparatively minor, and had been remedied in that the posts had been taken down from the internet. Any fear of future violence was therefore unreasonable.

[28]     Ms Taefi sought to rely on the following passage from Doyle v McEwen:10

[34]     ... The requirement for “necessity” is a central requirement for jurisdiction under the [Domestic Violence] Act. In the course of day-to-day living some degree of interaction between even estranged persons may well occur.  This  Act  cannot  be  utilised  merely  to  stop  social  interaction, sometimes of an unattractive character, however devoutly one person may want that to happen. An order of this kind is a powerful order, and an intrusion into the normal human condition of social intercourse. For an order to  be  “necessary”  there  must  be  compelling  reasons.  The  word  means “cannot be done without”, having regard to the purposes of the statute.

[29]     However I note that in Surrey v Surrey the Court of Appeal cautioned against reliance on that particular passage as a matter of course:

[109]    Given the factual situation being dealt with in Doyle, we do not consider that the test articulated by Hammond J in that case should be treated as having general application. While the comments of Hammond J in Doyle were understandable in the context of that case and provided a timely reminder that protection orders should not be imposed as a matter of course, we consider that the test is put too strongly for the ordinary run of cases, particularly those where there has been a pattern of domestic violence in the past.

[30]     Ms Taefi submitted that the Facebook and blog posts were analogous to the conduct in Doyle v McEwen, which involved a card referring to the applicant as an “old fat tart” with another more obscure comment.  Because the postings had been removed and there had been no further occurrences she submitted there was no need

for an order.

10     Doyle v McEwen [2001] NZFLR 23 (HC), per Hammond J.

[31]     However, I consider this case to be quite different and far more serious than Doyle’s case.   The appellant’s actions in this case cannot be described as merely social interactions of an “unattractive character”.   Nor are they one-off or limited. They have continued over an extended period.

[32]     As the Court of Appeal noted in Surrey, the best predictor of future conduct is past conduct.   In this case there has been a significant history of inappropriate actions by the appellant towards the respondent.

[33]     On 21 July 2011 the appellant gave an undertaking to the respondent that he would not, amongst other things, engage or threaten to engage in “... behaviour including intimidation or harassment which amounts to psychological abuse” and also that he would not “... watch, loiter near, or prevent, or hinder access to or from [the respondent’s] residence ...”.

[34]     Despite that undertaking, on his own admission, he sent the abusive letter to

the respondent’s family in December 2011 and later posted it on a blog site.

[35]     Other incidents followed. As noted the appellant made allegations of fraud to the police on 21 March 2012.  The evidence confirms the police did not consider the respondent had a case to answer.

[36]     Then on 8 April 2012 there was the driveway incident.

[37]     Although the appellant accepts the above incidents occurred, it was only when the abusive posts started that the respondent applied for the order.

[38]     Despite Ms Taefi’s submission to the contrary, I consider that on an objective assessment the appellant’s actions leave a reasonable concern that he will continue to act that way in the future, so that the respondent’s fear of further psychological abuse in the future is reasonable.  There has been a pattern of psychological abuse of the respondent by the appellant, which is confirmed by, but not limited to, the postings.

[39]     Further, the reassurance that the appellant will not act this way in the future can carry little weight given that he had previously, in 2011, provided an undertaking

to the Court but by his subsequent conduct breached that undertaking.  Next, I note that at least one posting followed the making of the temporary protection order on this application.  Further, the appellant photographed the respondent and posted that photograph in May 2013, well after the interim order was made in March 2013. Finally, the posts were only taken down shortly before the hearing in July 2013, despite being identified and complained of by the respondent in her affidavit of 12

March 2013.

[40]     The Judge was right in my judgment in her conclusion that the situation between the parties was particularly intense and would remain so until relationship property issues were resolved.  That is a clear pressure point which remains.  It may well  be  that  once  those  issues  are  resolved  and  the  parties  move  on  that  an application for the discharge of the protection order could be made.   However, at present there is a need for the order to stop the appellant.  The Court can have no confidence that the appellant will not continue to psychologically abuse the respondent without such an order.

[41]     Ms Taefi sought to make something of the fact that there is contact between the appellant and respondent in relation to their child.   The fact there is limited contact for that purpose cannot be seen as an acknowledgement by the respondent that the balance of the appellant’s conduct towards her is in any way acceptable or in some way that that decreases the effect on her of his other inappropriate behaviour. The respondent clarified that she does not need to see or deal directly with the appellant in relation to their child.

[42]     Ms Taefi sought to rely on the case of T V-E11  where consensual contact resulted in the Court’s decision not to grant a protection order.   That case is distinguishable.  The Judge found there was only one incident of violence, other than the incident supporting the application.  Further, after obtaining an interim order the applicant had made many concerted communications to the respondent reflecting warmth and love, and had cared for him by having him in her home two weeks after obtaining the order while he recuperated. The case is quite different.

[43]     The final point taken by Ms Taefi was that, as she put it, there was a tension, if not direct conflict, in the position of the appellant claiming that the real violence was directed at the daughter.  She referred to the respondent’s statement in her first affidavit that she felt strong enough to protect herself from the threat of physical violence.12

[44]     I do not consider there to be any such tension.  An order may be made if necessary for the protection of the applicant or a child of the applicant’s family or both. This is a case where the child would inevitably be affected by the behaviour on the part of her father towards her mother.   Indeed, there is evidence that she was affected.  It may be that the respondent feels strong enough to protect herself from the threat of physical violence.  But violence in the sense of psychological abuse is something different.   The respondent is rightly concerned that the appellant will continue to inflict that on her (with a corresponding effect on the child) if she does not have the protection of the order.

Undertaking

[45]     Finally Ms Taefi submitted that, if the Court was otherwise minded to dismiss the appeal, the appellant would undertake to the Court not to post any further blogs or act in that way towards the respondent.   She suggested the order could be discharged on that basis.  I note that in M v M a similar undertaking was accepted by the Court.  However, given the history to this case and for the reasons given above I do not consider an undertaking will be sufficient.  In short, despite the undertaking the appellant gave in 2011, his psychological abuse of the respondent has continued in a variety of ways since then.

Result

[46]     The appeal is dismissed.

Venning J