B v Family Court at Masterton

[2014] NZHC 3057

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 MASTERTON REGISTRY

CIV-2014-435-0023 [2014] NZHC 3057

BETWEEN

B

Plaintiff

AND

FAMILY COURT AT MASTERTON First Defendant

C

Second Defendant

Hearing:	1 December 2014
Appearances:	G D S Taylor for plaintiff D L Harris for the Family Court abiding M Andrews as counsel assisting
Judgment:	2 December 2014

JUDGMENT OF CLIFFORD J

Introduction

[1]      The  plaintiff,  B,  has  been  married  to  the  second  respondent  C  for approximately 15  years.    B  and  C  have,  until  recently,  been  living  together  at Featherston.  B and C also own a property in Wellington.  C works in Wellington and generally lives  in  that  property for much of  the week.    He  also  returns  to  the

Wairarapa property for weekends, and sometimes also for week nights.

B v FAMILY COURT AT MASTERTON [2014] NZHC 3057 [2 December 2014]

[2]      On 9 November 2014 B decided to leave C.  As matters transpired, it was C who  left   the  Wairarapa  property  on   the  evening  of  9 November   2014,   in circumstances to which I return.   As I understand it, C is currently living at the Wellington property.

[3]      On  18  November  B  applied  under  the  Domestic Violence Act  1995  for protection orders against C, and for property and furniture orders with respect to the Wairarapa property.  She did so on a without notice basis.

[4]      As recorded in a minute issued that day, Judge Rogers in the Family Court at Masterton  declined  to  consider  B’s  application  on  a  without  notice  basis,  and required that application to be on notice.   The Judge did so in a standard form minute, the relevant extract from which is reproduced below:

[5]      B now applies, again on a without notice basis, for judicial review of that decision.   In essence she says that, having regard to the relevant provisions of the Domestic Violence Act, that decision was wrong as a matter of law and that this Court should quash that decision and remit her application to the Family Court to be heard on a without notice basis.

[6]      This matter was called in the Chambers List yesterday morning.  At that time I understood Ms Harris, of the Crown Law Office who appeared for the first respondent, to say that she did not have instructions, but that Mr Andrews, also of the Crown Law Office, was available to appear at short notice later in the day.   I misunderstood Ms Harris.   Her instructions were to abide.   Her proposal was that Mr Andrews would appear, in the absence of a contradicter, to assist the Court.  I set the matter down for hearing at 2.15 pm.  At that time Mr Taylor appeared for B and Mr  Andrews   as   counsel   assisting.      I  acknowledge   the   valuable   assistance Mr Andrews provided and, albeit after the event, appoint him as counsel assisting, should that be relevant for costs reimbursement or other issues.

The Domestic Violence Act 1995

[7]      Section  13  of  the  Domestic  Violence  Act  provides  for  the  making  of protection orders on a without notice basis in the following terms:

13      Application without notice for protection order

(1)     A protection order may be made on an application without notice if the court is satisfied that the delay that would be caused by proceeding on notice would or might entail—

(a)     a risk of harm; or

(b)     undue hardship—

to the applicant or a child of the applicant's family, or both.

(2)     Without limiting the matters to which the court may have regard when determining whether to grant a protection order on an application without notice, 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 respondent's behaviour; and

(b)     the effect of that behaviour on the applicant or a child of the applicant's family, or both.

[8]      A protection order made on a without notice basis is, in the first instance, temporary, but becomes final by operation of law three months after the date on which it is made unless the respondent:

(a)      applies to have that order discharged (s 47); or

(b)gives notice that he or she wishes to be heard on whether a final order should be substituted for the temporary order and the Court discharges that order (ss 76 to 80A).

Grounds of review

[9]      B’s application raises three issues. They are:

(a)       Does this Court have jurisdiction to review the challenged decision? (b)       If so, should I undertake that review on a without notice basis?

(c)       Should I grant the relief sought? [10]    I consider each issue in turn.

[11]     I set out the facts that have given rise to this application when I consider whether I should grant the relief sought.

Jurisdiction

[12]     The general principle that the High Court has jurisdiction to judicially review a decision of the Family Court is well-established.1     Judges of the Family Court exercise statutory powers of decision and are subject to judicial review accordingly. I note immediately that it is also well-established that that jurisdiction should be exercised sparingly.

[13]     One factor as to whether the jurisdiction should be exercised is, here as in other situations, whether a right of appeal exists and if so has it been exercised. Rights of appeal against decisions of the Family Court proceed in terms of s 91 of the Domestic Violence Act.  I accept there is some uncertainty as to whether or not a decision declining to hear an application on a without notice basis under s 13 is one against which a right of appeal exists.

[14]     On the basis of the general principle of reviewability and that uncertainty, I

consider that it is appropriate here to proceed by way of judicial review.

Without notice

[15]     Mr Taylor adopted the procedure of seeking judicial review on a without notice  basis  in  reliance  on  the  decision  of  this  Court  in  Ritchie  v  Department for Courts.2    As here, the plaintiff there sought judicial review on a without notice basis of a Family Court decision declining to hear an application for a protection order without notice.  Laurenson J reasoned:

[5]       Because it relates to an application for an ex parte order, and as the whole object of the present application for review is to see if protection can be obtained without notice to the proposed respondent, then I conclude it is consistent with that situation that I proceed at this stage on an ex parte basis.

…

[16]     I reach the same conclusion.

[17]     On that basis I conclude it is appropriate that I hear this application for judicial review on a without notice basis.

Should I grant relief?

The relationship context

[18]     B has set out the background to her decision to leave C, and to apply for a protection order, in an affidavit.   In that affidavit she deposes she married C in August 1999 and almost immediately thereafter emigrated to New Zealand.  Whilst she and her husband had tried to have children, they have not been successful.

[19]     B deposes to a background of physical, sexual and psychological  abuse, including:

(a)       C requiring her to have sex with him when she spent more on their credit card than had been anticipated or agreed;

(b)in the early part of their relationship (11 or 12 years ago), C hitting her and leaving bruising;

(c)      C humiliating her in public by referring jokingly to her mental illness (B accepts that she suffers from bipolar disorder) and her drinking problem (B acknowledges she has a drinking problem, caused, she says, by the stresses and strains of her relationship);

(d)one instance of rape in June 2013, as a result of which she filed a complaint with the police;

(e)      numerous instances of her having tried to leave C in the past, when he has reported her as missing or referred her to mental health services as being unwell and in need of assessment;

(f)      an   incident   in  August   this   year   when,   following   a   wedding anniversary dinner out, C said he wanted B to pay for that dinner with sex because he had paid the bill; and

(g)an incident on Saturday 8 November when, having taken B and two young helpers who were staying with them out for cocktails, C said “You have to fuck me for that”.

[20]     B says her self esteem has been destroyed and that C has manipulated and controlled her for many years.  As a result, B says that, although she has wanted to, in the past she has felt unable to leave C.   She says that C’s treatment of her has made her feel like a prostitute, and it has done for years.   She says the continual sexual abuse makes her feel totally helpless and worthless.  She says she needs to feel safe in her own home and that she needs the furniture in the home to be able to live there.

[21]     Given the basis on which the District Court made its decision, it is necessary to record the somewhat unusual circumstances in which C came to stop living at the Wairarapa property in some detail.

[22]     On Sunday 9 November 2014, and having decided to leave C, B went to move C’s car so she could drive away in her car.  In the course of doing so B drove into a fence (by mistake she says).   She then went to leave in her car.   C closed wooden gates in her path.  B got in her car and drove towards those gates, which C was then standing in front of.  She says he got on the bonnet of her car, she kept going very slowly and pushed the gate open.  Then, to use her own words:

I drove around a bit.  I tried seeing if he would fall off if I braked but he didn’t.  In the end I stopped.  [C] came to knock on the side window and I decided I could drive away so I drove off.

[23]     Sometime later B returned to the Wairarapa property.  C was not there.  He had been taken to hospital with a broken leg.  It is not clear how that occurred.

[24]     Police were called as a result of this incident.  Their report, attached to B’s

affidavit, records that C said his injury was his fault.

[25]     B did not stay at the Wairarapa property for some time.  At a later point – C either being in hospital or his mobility restricted by his broken leg – B says she felt safer to return to that property, where she is now living.

[26]     In her affidavit B said that the only way to address her mental health and other problems is, she realises, to leave C.  She is scared he will track her down and persuade her to return to him.   She says she cannot cope with having any contact from him at all, by phone, by text or by him driving past if he knows where she is.

[27]     It goes without saying that these allegations, and the broader narrative, are as yet untested.  However, it is clear that under s 13 the Court must make its assessment of delay on the basis of the evidence before it, whilst at the same time recognising the constraints it operates under when acting on a without notice basis.

Submissions

[28]     In essence, Mr Taylor argues that the Family Court erred: (a)  by not giving reasons for its decision;

(b)in terms of that decision as recorded, by failing to consider adequately the factors found in s 13(1) and (2);

(c)      by making its finding of fact, namely that C “has himself been the victim of violence by the applicant” which was not a finding reasonably open to the Court on the evidence before it; and

(d)as a result, wrongly concluding that the s 13(2) threshold for a without notice application had not been met.

[29]     Elaborating on those submissions, Mr Taylor submitted that the wording in s 13(1) referring to “the delay that would be caused by proceeding on notice would or might entail a risk of harm” meant there was a very low threshold to be met to make it appropriate for the Court to proceed on a without notice basis.  Mr Taylor went  so  far  as  to  submit  that  “the  effect  of  this  possibility  of  a  possibility  is submitted to be that the threshold is met unless the possibility of harm has been positively excluded”.

[30]     In his submissions, Mr Andrews drew my attention to two decisions of this Court, D v D and TLL v PS, where the practical implications of the Family Court having to give extensive reasons, or record mechanically that it had considered relevant  criteria,  were  discussed.3      By  reference  to  those  matters,  Mr Andrews cautioned against accepting Mr Taylor’s arguments that the Family Court had erred by failing to give reasons or to consider relevant mandatory matters.  Mr Andrews

also submitted that the interpretation of the threshold expressed in s 13(1) proposed by Mr Taylor went further than appropriate.

[31]     Rather,  Mr Andrews  who  at  the  end  of  the  day  supported  Mr  Taylor’s application, suggested that the appropriate way for me to consider this matter was, as Laurenson J had done in Ritchie, on the basis of whether the Family Court had reached an unreasonable decision, one that was not open to it.  In submitting that that decision was not a reasonable one, Mr Andrews commented in particular on the

conclusion recorded that it would appear C had himself been the victim of domestic

3      D v D [2004] NZFLR 320; TLL v PS [Protection Orders] [2006] NZFLR 897.

violence, Mr Andrews agreed with Mr Taylor that was not a finding reasonably open to the Court on the evidence before it.

Analysis

[32]     The  Family  Court  receives  and  considers  as  a  matter  of  urgency  large numbers of applications for protection orders to be made on a without notice basis. In TLL v PS, a full Court of this Court considered an appeal against a protection order made on a without notice basis on the ground that the Judge simply recorded, in a template minute which I infer is similar to the one used here,  that the statutory

criteria had been met.4    As regards a requirement to give reasons, the full Court

observed:

[57]     We acknowledge also that a blanket requirement to give reasons in every case would necessarily impose a considerable burden on the Judges of the Family Court.  It is reasonable to assume that the workload created by applications  brought  under  the Act  is  considerable.    In  her  submissions Ms Davis observed that in the 12-month period prior to 19 August 2005 the Family Court had received more than 4500 applications under the Act.  Of these,  it  is  likely  that  a  reasonable  proportion  were  applications  made without notice.  If this figure is correct, it demonstrates that the Judges of the Family Court must spend a significant proportion of their time dealing with such applications.  Any requirement that reasons be given in all cases would obviously have a significant impact on the workload of that Court.

[33]     In  the  same  decision,  the  Court  referred  to  the  following  comments  of

Priestley J in D v D:5

[29]      Again, although I have not heard full argument on the topic, I am of the view that it would be unreasonable to expect Family Court Judges, and in particular duty Judges, whom this Court is aware are sometimes required to deal with twenty or thirty urgent ex parte domestic violence applications each day, faxed to the relevant Court from all parts of the country, to give reasons as to why they have either made or declined to make the ex parte orders sought.  If orders were made, it is a fair inference that the Judge has decided, on the basis of the papers before the Court, that the statutory criteria have been made out, and in particular that s 13 is applicable.  Conversely, in a situation where, as here, the Court directs that the application is to be heard on  notice,  it  is,  in  my  judgment,  a  fair  inference  that  the  Judge  has determined that s 13 is inapplicable and that the threshold for proceeding ex parte has not been made out.

[34]     In TTL v PS this Court concluded:

4      TLL v PS [Protection Orders], above n 3.

5      D v D, above n 3.

[58]     Absent other factors, the practical impact of a requirement to give reasons may not have been sufficient to carry the day.   That would be a matter of resourcing.  If we had been persuaded that reasons should always be  given,  resources  would  have  to  be  found  to  give  effect  to  that requirement.  For the reasons we have given, however, we are satisfied that without notice applications under the Act fall into a special category that does not require reasons to be given in every case.

[59]     In reaching that conclusion we are mindful of the fact that the Law Commission  has recommended (New  Zealand  Law Commission  Dispute Resolution in the Family Court  (NZLC R82, 2003) paragraph 576) that Family Court Judges should issue a Minute giving reasons for any order made without notice.

[35]     Against the same background, and adopting that reasoning, I am not attracted to Mr Taylor’s argument that, by reference to the brevity of its minute, the Family Court  can  be  said  to  have  failed  to  give  adequate  reasons  and/or  to  have demonstrated that it had not considered the statutory criteria and relevant facts.

[36]     In the additional comments typed into the standard form, the Judge first

recorded “Jurisdiction made out. Threshold not met”.

[37]     Those observations are to be seen in terms of the first two matters on which the Court would need to be satisfied, were it to hear the matter on a without notice basis, as reflected in that standard minute.  Those were the jurisdictional matters and “that the delay that would be caused by proceeding on notice would or might entail (a) a risk or harm or (b) undue hardship”.  As a matter of commonsense it seems reasonably clear to me that the completion of the minute in that way evidences the fact that the Judge did consider the relevant criteria and, because she thought that the threshold in s 13(1) had not been met, and had accordingly declined the application and that in doing so she had done so consistently with s 13(2).

[38]     I therefore turn, as Laurenson J did, to the reasonableness of that decision.

[39]     That there are “complex dynamics in play” is not, I think, any reason in and of itself  to  decline to  make a  protection  order on  a  without  notice  basis  or to conclude that the threshold (delay would or might entail a risk of harm or undue hardship) has not been met.  Furthermore, I consider that as submitted by Mr Taylor and as acknowledged by Mr Andrews, the Judge’s reference to C himself having

been the victim of violence by the applicant went further than the evidence established.  Certainly, the circumstances on the evening of 9 November 2014 which led to C’s injury and B leaving the Wairarapa property, but subsequently returning to live in it when she felt safe due to C’s hospitalisation in Wellington, are of some significance.  They will be of particular relevance to any permanent resolution of the difficulties that exist between B and C.  But those events do not, in my view, detract from the narrative contained in B’s affidavit as to what led up to those events, and the significance of that narrative, when assessed in the manner required by s 13(2), as regards the test in s 13(1) as to whether or not delay would or might entail a risk of harm to B.  On the narrative of events that B has provided, I do not see how one could reasonably conclude that that earlier behaviour could not be said to be behaviour which would, or might, entail a risk of harm or undue hardship to B, were she to be required to serve her application on C.

[40]     In reaching that conclusion, I adopt the following passage from Laurenson J’s

decision in Ritchie:

[13]     I should add that interpreting the word “delay” I do so on the basis that this is not simply a temporal consideration, but that it must also include anything that goes with the delay and the consequences of that.  In my view if the delay carries with it the requirement to serve notice of the proceeding on the respondent, that is an element of the delay which would, or might, entail a risk of harm or undue hardship.

[41]     On that basis, I grant B’s application for judicial review to the extent of:

(a)      quashing the Family Court’s decision requiring B’s application for

protection and related orders to be served on C; and

(b)      remitting that matter to be heard on a without notice basis by the

Family Court at Masterton just as soon as possible.

“Clifford J”

Solicitors:

Ainsley Hewton, Masterton. Crown Law Office, Wellington.