Black v Banks - [2016] NZHC 2492

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

THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-000746 [2016] NZHC 2492

BETWEEN
BLACK

Appellant

AND

BANKS Respondent

Hearing: 5 October 2016

Appearances:

M D W King & R Allison for the Appellant
S van Bohemen & A Bayliss for the Respondent

Judgment:

19 October 2016

JUDGMENT OF NATION J

[1] The appellant (Ms Black) and respondent (Mr Banks) began a relationship in

2005. They married on 27 November 2010. They separated in April 2012. They had two children under five when they separated. Ms Black also had two children from an earlier marriage. (Because of suppression of the parties’ names, this judgment is being anonymised. The names of Black and Banks will be used in any report of the judgment. Those names are fictitious.)

[2] Although Ms Black and Mr Banks separated in April 2012, they continued to work together in a business and continued to have some involvement with each other outside work and on an intimate basis. Around May 2015, Ms Black changed the
locks on her home.

BLACK v BANKS [2016] NZHC 2492 [19 October 2016]

[3] In July 2015, Ms Black filed a without notice application for a protection order in the Family Court. On 3 July 2015, a Family Court Judge granted a temporary protection order on that without notice basis and on the basis of Ms Black’s affidavit, noting:

The past physical violence alleged against the respondent is of serious concern but of more recent times, the evidence persuades me of ongoing disempowering psychological abuse (abusive language, threats, harassment and intimidation) that of itself makes a strong case for immediate protection.

[4] Mr Banks was directed to undertake an assessment and attend a non-violence programme. Mr Banks filed an objection to that direction and an affidavit in support of his intention to appear and to dispute the temporary protection order. Ms Black filed an affidavit in reply.

[5] There was a hearing in the Family Court on 8 September 2015. Both Ms

Black and Mr Banks gave oral evidence and were cross-examined.

[6] Judge Somerville gave judgment that day.1 He found the parties had been in a domestic relationship. There had been domestic violence through psychological abuse but he concluded a protection order was no longer necessary. Ms Black has appealed against that decision.

Leave to appeal out of time

[7] There was a delay in Ms Black’s filing her notice of appeal because of having to wait for the grant of legal aid.

[8] Leave is granted.2

Approach on appeal

[9] Ms Black has a right to appeal this decision of Judge Somerville, with the appeal proceeding by way of rehearing.3

1      [2015] NZFC 7881.
2      Domestic Violence Act 1995, s 91(2); High Court Rules, r 20.4(3).
3      Domestic Violence Act 1995, ss 91(1) and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Black v Banks

Details

AGLC: Black v Banks [2016] NZHC 2492
Case: [2016] NZHC 2492
Decision Date: 19 October 2016

CaseChat Overview and Summary

The appeal was brought by Ms Black against the Family Court Judge’s decision to discharge a temporary protection order against Mr Banks. The appeal was brought out of time because Ms Black had to wait for the grant of legal aid. The appeal proceeded by way of rehearing. The appeal was against a discretionary decision. To succeed, Ms Black had to show that the Judge acted on a wrong principle, failed to take into account some relevant matter, took into account some irrelevant matter or was plainly wrong. Ms Black’s first ground of appeal was that the Judge did not consider whether Mr Banks’ past domestic violence formed part of a pattern of behaviour in respect of which Ms Black needed protection. This was a mandatory consideration. The Judge referred to the way Mr Banks exhibited his anger on a recurring basis and how Ms Black had come to accommodate this behaviour, creating an ongoing serious problem for both parties. The Judge also spoke of the difficulties created by the intensely emotional way Mr Banks talked about issues over the children and his desire to have contact with them, thus making the discussions difficult. The Judge also spoke of Ms Black and Mr Banks needing to have discussions to deal with issues over contact but those not taking place because Ms Black knew that, in such a discussion, Mr Banks would get upset and she would feel threatened. The Judge concluded that both parties had given what they believed to be truthful evidence and acknowledged that Ms Black had experienced behaviour in Mr Banks which she considered to be abusive. The Judge discussed what he considered to be the reasons for that behaviour and Ms Black’s perception. Having done that, he found there had been psychological abuse in the relationship. Given that discussion in the judgment, the Judge did consider whether there was a pattern of behaviour which meant there had been past domestic violence in the form of psychological abuse. Ms Black’s second ground of appeal was that the Judge did not take into account the effect of the past domestic violence on Ms Black. This was a mandatory consideration. The Judge referred to the evidence of Ms Black that Mr Banks’ pattern of abusive behaviour, involving intimidation, threats, general abuse and swearing, caused her to become frightened of Mr Banks. He referred to the way she had reacted to Mr Banks’ conduct by accommodating that behaviour without Mr Banks truly knowing how she felt and how this had become a serious problem for both of them. He referred to the way Mr Banks’ conduct was not acceptable to Ms Black and was good reason for her to separate. He referred to the way she had not insisted that his contact with the children must be away from Ms Black’s home earlier than she did because she did not feel able to tell Mr Banks what she needed to, knowing that he would get upset and she would feel threatened. The Judge also referred to the way the letter signalling an imminent change in child support would be seen through Ms Black’s eyes as being abusive. The Judge did take into account the effect of Mr Banks’ conduct on Ms Black. Ms Black’s third ground of appeal was that the Judge put undue weight on the fact the Applicant and Respondent were no longer working in the same office, there being no evidence before the Court that the Applicant and the Respondent would continue to operate in separate work environments if the Temporary Protection Order was discharged. The Judge did not put undue weight on the fact the parties were no longer working in the same office. His actual conclusion was that they were “able to work in the same business but independently of each other”. The Judge was justified in concluding they were able to work independently of each other. Ms Black’s fourth ground of appeal was that the Judge put undue weight on the fact the parties were engaged in proceedings under the Care of Children Act 2004. The Judge did not put undue weight on the fact the parties were engaged in proceedings under the Care of Children Act 2004. The Judge’s views in this regard were not simplistic. He noted that they should have issued such proceedings “a long time ago” but acknowledged that Mr Banks had not wanted to start the proceedings because it would have ended the possibility of reconciliation. Ms Black had not wanted to start such proceedings because it would bring the conflict to a head. Of significance to the Judge was the fact that, in such proceedings, they would both be able to deal with the child-related issues safely through lawyers whereas their previous discussions had been a cause of conflict, with displays of anger on the part of Mr Banks, and fear and anxiety on the part of Ms Black in response. It was the Judge’s assessment that, through such proceedings, including the possibility of mediation, there was a reasonable prospect that issues over care of the children would diminish. Mr Banks would be a lot more relaxed and would be more like the person he “used to be at the beginning” of the parties’ relationship. The Judge was not wrong to conclude that a protection order was no longer necessary. The Judge was well placed to determine whether the matters which he relied on, in deciding that a protection order was not necessary, were justified. He was in a better position than the appeal court can be, in reading a transcript of evidence, to assess how Mr Banks’ unjustified denials of abuse, but also acknowledgements of abuse and apologies for it, impacted on the need for a continuation of the orders. The appeal court was not satisfied that the Family Court Judge acted on a wrong principle, failed to take into account some relevant matter, took into account some irrelevant matter or was plainly wrong. Accordingly, the appeal had to be dismissed. The appeal court refused Mr Banks’ application for costs orders. There was no utility in making an order against Ms Black personally for costs. There were no exceptional circumstances to justify making an order against Ms Black in a civil proceeding. The attendances required of Mr Banks’ counsel in relation to the application to adduce further evidence were limited. Given the Family Court Judge’s finding that there had been psychological abuse and thus domestic violence, Ms Black’s anxiety at receiving information as to the Police investigations was understandable. She abandoned her application with the benefit of views expressed informally by Mander J.

Orders