BLH v MNL
[2014] NZHC 194
•18 February 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-4772 [2014] NZHC 194
BETWEEN BLH Appellant
ANDMNL Respondent
Hearing: 12 February 2014
Appearances: S R Jefferson QC for appellant
J E McLennan for respondent
J R Robertson for child
Judgment: 18 February 2014
JUDGMENT OF FOGARTY J
In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 4.00 pm on Tuesday 18 February 2014
Solicitors:
Simon Jefferson QC, Auckland
Holmden Horrocks, AucklandUnity Chambers, Auckland
BLH v MNL [2014] NZHC 194 [18 February 2014]
Introduction
[1] The parties to this marriage are mother (appellant) and father (respondent), of a son. Currently, by their agreement, both have access to the son. Each of them regards the terms of access as unsatisfactory. Both have applied to the Family Court for Parenting Orders. The mother has included in her argument, allegations that the husband is violent. She relies on allegations of violence against her. The husband has replied by arguing she has been violent to him.
Relevant law and process to date
[2] By law, violence is of considerable relevance to the terms of any Parenting Orders. This is by reason of the Domestic Violence Act 1995, replicated in the Care of Children Act 2004 in ss 59, 60 and 61. Proof of domestic violence will be relevant to any Parenting Orders, even if the domestic violence has never been against children.
[3] Mr Jefferson QC explained that therefore in this context, an application for Parenting Orders raises a preliminary question: was there domestic violence? If the answer is yes, that is a “funnel” down which the analysis thereafter continues. Sections 59, 60 and 61 provide:
59 Application of section 60
(1) Section 60 applies to proceedings—
(a) relating to an application under this Act for any of the following:
(i) an order about the person or persons who have the role of providing day-to-day care for a child:
(ii) an order about contact with a child:
(iii) the variation or discharge of, or of any condition of, an order in subparagraph (i) or subparagraph (ii); and
(b) in which there is a violent party.]
(2) Section 60 applies to proceedings specified in subsection (1) whether or not those proceedings also relate to any other matter (whether arising under this Act or any other enactment).
60 Procedure for dealing with proceedings in section 59(1)
(1) Repealed. (2) Repealed.
(3) In proceedings to which this section applies in accordance with section 59 (the proceedings), the court must not make—
(a) an order giving the violent party the role of providing day- to-day care for the child to whom the proceedings relate; or
(b) any order allowing the violent party contact (other than supervised contact) with that child.]
(3A) Subsection (3) is subject to subsection (4).
(4) In the situation in subsection (3), the Court may make an order in subsection (3)(a) or (b) if, after complying with section 61, the Court is satisfied that the child will be safe while the violent party—
(a) provides day-to-day care for the child; or (as the case may be)
(b) has contact with the child.
(5) If, in the situation in subsection (3), the Court is not satisfied as provided in subsection (4), it may make an order for supervised contact between the child and the violent party, and, if it does so, the Court must specify in the order whether the supervised contact is to occur—
(a) under the supervision of an approved provider; or
(b) in the immediate presence of a person approved by the Court (for example, a relative, a friend of the family of the child, or any other person whom the Court considers suitable).
61 Matters relevant to question in section 60(4)
In considering, for the purposes of section 60(4), whether a child will be safe if a violent party provides day-to-day care for, or has contact (other than supervised contact) with, the child, the Court must, so far as is practicable, have regard to the following matters:
(a) the nature and seriousness of the violence used: (b) how recently the violence occurred:
(c) the frequency of the violence:
(d) the likelihood of further violence occurring:
(e) the physical or emotional harm caused to the child by the violence: (f) whether the other party to the proceedings—
(i) considers that the child will be safe while the violent party provides day-to-day care for, or has contact with, the child; and
(ii) consents to the violent party providing day-to-day care for, or having contact (other than supervised contact) with, the child:
(g) any views the child expresses on the matter (as required by section
6):
(h) any steps taken by the violent party to prevent further violence occurring:
(i) all other matters the Court considers relevant.
The first hearing: s 60
[4] In September 2003 over two days, Judge McHardy considered the merits of the competing allegations of domestic violence, applying s 60.1 He did so, leaving for a second hearing the application of s 61.
[5] The parties agreed the reason for two hearings was pragmatic and unfortunate. The applications for Parenting Orders had been given a fixture for two days before there were allegations of domestic violence. As a result of the violence allegations, it was not possible to hear and resolve all parenting issues within the two days. The hearing date arrived after a psychiatric report had been commissioned, but before it came to hand. That meant that if the fixture was to proceed it could only deal with s 60. If the fixture did not proceed, then there would have to be a longer fixture time and such time was not then available.
[6] The parties elected to proceed on the s 60 issues and defer the application of s 61. That explains the opening paragraph of the decision which is as follows:
[1] The primary issue between the parties in this matter is what is the appropriate care arrangement for their child, (jj). The focus of this particular hearing however has been only in respect of s 60 issues, allegations of physical violence having been made by each party against the other. Although the hearing dealt principally on the applicant’s allegations of violence against the respondent, his allegations against her also have to be considered.
1 BLH v MNL [2013] NZFC 8216.
And then [14] and [15]:
[14] It had been agreed that the focus of this hearing would be confined to the allegations of violence. The hearing was not to include an assessment that is required pursuant to s 61 of the Act. The applicant has issues with the content of the s 133 report which has been released to the parties. I was specifically asked not to read that report prior to the hearing. The only information I had in respect to the content of the s 133 report was what was referred to in counsel’s memorandum to me in respect of whether the whole matter needed to be adjourned or whether there could be an initial inquiry under s 60 as to the allegations of violence.
[15] Therefore the focus of this particular hearing was narrow. The applicant in her affidavit evidence had made 12 separate allegations of violence from the respondent to her. I have to be satisfied that on the balance of probabilities the allegations have been proven. I will deal with these allegations first. Then there needs to be findings in respect of the alleged violence on the applicant’s part.
[7] The Judge went on to make findings of violence by both the mother and the father, against each other. The father had accepted some domestic violence against the mother. In respect of the mother (applicant) the Judge found:
[78] It is apparent from the evidence that there has been physical violence meted out from the applicant to the respondent. These however have not been particularised and the Court has been given insufficient detail to make findings on each form of violence that has been alleged. However, there is sufficient evidence, including an admission by the applicant herself to indicate that she also falls into the category of a violent person. She is not a victim who is simply defending herself. This is a situation where the nature of the relationship was such that each party has become significantly angry with the other over the period of the relationship. This has resulted in incidents which have involved angry verbal arguments between the parties.
[8] That led to the Judge’s conclusion:
[80] It became obvious during the applicant’s evidence that she has rationalised the dysfunction that existed in the parties’ relationship on the basis that she was dealing with a violent person. She has claimed validation of this by referring to information and advice she has received from professionals, who have in the main only heard her side of the story. My findings have been that there has been physical violence in this relationship. The respondent has been physically violent to the applicant and vice-versa. There is no evidence to justify the conclusion that the applicant sought from the Court. The violence that the respondent indulged in was clearly situational. There now needs to be a safety assessment carried out
which is required by s 61 if that is still considered to be necessary given the findings in this decision.
[9] Both counsel were in agreement that the correct inference from the last two sentences of [80], is that the Judge is likely to find that no precautions have to be made in the Parenting Orders in respect of the son, by reason of the history of physical violence between the parents.
[10] The mother has lodged an appeal in this Court against the findings that she has been violent. She has also applied to stay the case in the Family Court from going to s 61 analysis.
[11] In a minute dated 12 November 2013, Judge McHardy has allowed the s 61 issue to be allocated a hearing. He does not appear to have directly rejected the application for stay. Rather, he said:
Given that there is no stay of the substantive proceeding at the present time I am going to direct that the matter be transferred to centralised fixtures for the allocation of appropriate hearing.
[12] On 5 December he said:
The matter will be put on “hold” if stay of proceedings is granted. Monitor and register if listed in 14 days – otherwise leave in centralised fixture callover list for allocation of a two day fixture.
[13] The mother has also filed an application for stay of the Family Court proceedings in this Court, pending resolution of her appeal against the finding that she has been violent.
[14] The father responds by challenging the jurisdiction of the Court to hear this appeal, on the grounds that it is prevented by s 143, which provides:
143 Appeals to High Court
(1) This subsection applies to a decision of a Family Court or District
Court, in proceedings under this Act (other than criminal proceedings), to—
(a) make or refuse to make an order (other than an interlocutory or interim order); or
(b) dismiss the proceedings; or
(c) otherwise finally determine the proceedings.
(2) A party to proceedings in which there is made a decision to which subsection (1) applies, or a child to whom those proceedings relate, may appeal to the High Court against the decision. However, if the proceedings are under section 44 or section 46, the party or child may appeal only with the leave of the High Court..
[15] Counsel for the father would prefer that I heard both the challenge to jurisdiction and the merits appeal by the mother, before delivering either decision. I cannot do that. If this Court has jurisdiction to hear the appeal it must be heard. If this Court does not have jurisdiction to hear the appeal, it would be a misfeasance on
my part to hear the merits appeal. Venning J in GEH v AJH,2 applying almost
identical provisions to s 143 of the Care of Children Act 2004, in s 91 of the Domestic Violence Act 1995, found that a finding of violence is not a separate decision capable of appeal. Relevantly his reasoning is set out in [10], [11], [12], [13] and [14]:
[10] Section 91 of the Act provides for the right of appeal. As relevant it reads:
91 Appeals to High Court
(1AA) This subsection applies to a decision of a Court, in proceedings under this Act, to—
(a) make or refuse to make an order; or
(b) dismiss the proceedings; or
(c) otherwise finally determine the proceedings.
(1) A party to proceedings in which there is made a decision to which subsection (1AA) applies, or any other person prejudicially affected by the decision, may appeal to the High Court against the decision.
(2) The High Court Rules and sections 74 to 78 of the District Courts Act 1947, with all necessary modifications, apply to an appeal under subsection (1) as if it were an appeal under section 72 of that Act.
[11] I accept Ms Hunter’s submission that the issue must be determined in light of the relevant statutory provisions that apply to this particular case: Walls v Calvert & Co [1994] 1 NZLR 424, 426.
[12] The determination of an application for a protection order involves a
number of steps, the first of which is a finding of violence. Ms Hunter’s
principal submission is that each step of this proceed is a separate decision in terms of s 91 of the Act, and therefore that the finding that Mr H was violent towards Mrs H is a decision that can be appealed.
[13] But the wording of s 91(1) does not permit such an approach. The right to appeal provided by s 91(1) is “against the decision”. Just what constitutes a decision for the purposes of such an appeal is set out in s
91(1AA). The decision is to:
a) make or refuse to make an order;
b) dismiss the proceeding; or
c) otherwise finally determine the proceeding.
[14] The relevant decision in this case was the decision to refuse to make the protection order sought by Mrs H. Mrs H could appeal against that decision. Mr H as the successful party cannot. Further support for the conclusion that a successful party may not appeal is found in the statutory wording of s 91, which provides a further right of appeal to “any other person prejudicially affected”.
[16] My task is complicated by a competing earlier decision of MacKenzie J in the case of S v B,3 hearing an appeal under s 143 and holding that a finding of violence on the part of the father in a preliminary hearing was a decision capable of being appealed separately. His relevant reasoning is contained in [5]-[10]:
[5] Section 143(1) confers a right of appeal as of right against any decision of the Family Court to “make or refuse to make an order (other than an interlocutory or interim order)”. In a case involving s 60, several findings are required to be made by the Judge:
(a) A determination of whether the allegation of violence is proved under s 60(1)(b);
(b) A determination of whether the Court is satisfied that the child will be safe while in the care of content of the violent party under s 60(4); and
(c) what orders as to the provision of day to day care, and contact (whether supervised or unsupervised) should be made.
[6] The first of those determinations involves findings of fact. If the finding is that there has not been violence then the second and third issues do not arise. If, however, the finding is that there has been violence, that finding does not lead directly to the making of any order. The making, or the refusal to make, an order arises only at the third stage, after the determination at the second stage has been
made. Any order is made after the third question has been considered.
[7] Any order made (or any refusal to make an order) at that third stage will, unless it is declared to be made for a limited period only, remain in force unless and until the position is reconsidered on some future occasion. If the position comes to be reconsidered, then it does not appear that the decision on the first question, namely whether violence has occurred, can be revisited. That is a finding of historical fact, which cannot change. I consider that Ms Davis is right when she submits that: “findings of fact about violence cannot be ‘undone’ or changed after they have been made, except by appeal. They stand forever and are a final determination”. This is not to say that the consequences of those historical factual findings will remain unchanged. They significance is capable of reassessment in the light of changed circumstances, and in the light of the passage of time.
[8] The determination under s 61 involves an assessment based on a number of matters, some of which are matters of historical fact and will not change, but others of which are matters of evaluation and which may change from time to time. Accordingly, the outcome of that evaluation and the orders which are appropriate in the light of it, may need to be revisited from time to time.
[9] The possibility that the evaluation of the s 61 matters, and the orders which may be appropriate in the light of that evaluation, may be able to be reviewed by the Court in the light of a subsequent change in circumstances does not mean that the decisions made as a result of that evaluation are interlocutory or interim, for the purposes of considering the rights of appeal under s 143. They are not interlocutory, as they are not incidental to a proceeding, in the procedural sense. They are not interim, as there is no prescribed timeframe for their continuation. They will remain until a change of circumstances makes some other order appropriate.
[10] I consider that there is accordingly a right of appeal as of right under s 143(1) in respect of the orders made, and that in such appeal the findings as to whether violence has occurred and as to the safety of the child, are matters which are able to be reviewed on an appellate basis by this Court.
[17] In [7] MacKenzie J adopted counsel’s classification that the finding of violence was a final determination, a phrase not to be found in s 143(1). Counsel before me agreed that this Court is faced with conflicting decisions of the High Court. S v B was not cited to Venning J.
[18] In such a situation there is no avoiding this Court having to choose between the two lines of reasoning.
The argument for jurisdiction to appeal to the High Court
[19] In the circumstances, Mr Jefferson agreed that he had to make out the argument for jurisdiction. In summary, he relied on s 143(1)(c). He did not wholly disavow s 143(1)(a) applying. In that regard, he invited the Court to give weight to the decision of Mallon J in Smith v Smith,4 where a man who was in prison was alleged to have been the father of a child. He was invited to provide DNA. He refused. The consequences of refusing a parentage test under the Family
Proceedings Act 1980 are that evidence can be given to the Court of that refusal and the Court may draw such inferences, if any, from the fact of refusal, as appear proper in the circumstances.5 A Family Court Judge made a recommendation that a parentage test be carried out. The putative father sought to appeal that recommendation. Appeals from the Family Court under Family Proceedings Act
1980 proceedings follow the same policy as s 143. Section 174 of the Family
Proceedings Act 1980 provided them:
174 Appeals from decisions of District Courts and Family Courts
(1AA) This subsection applies to a decision of a Family Court or District Court, in proceedings under this Act (other than criminal proceedings or proceedings under section 130), to—
(a) make or refuse to make an order; or
(b) dismiss the proceedings; or
(c) otherwise finally determine the proceedings.
[20] Mallon J held:
[37] I accept Mr Smith’s submission that a decision of the court need not be described as an order, in order to qualify as an order. A court decision may, for instance, make a “direction” or a “declaration”. This is specifically recognised in the definition of “interlocutory order” in the High Court rules which begins by defining that as “an order or a direction of the Court” that concerns a matter of procedure or grants some relief ancillary to that claimed in a pleading. The nature of the decision, rather than how it is described, should be the focus.
[21] Mr Jefferson also relied on s 72 of the District Courts Act 1947 which provides:
4 Smith v Smith [2013] NZHC 2536.
5 Family Proceedings Act 1980 s 57.
72 General right of appeal
(1) This subsection applies to every decision made by a District Court other than a decision of a kind in respect of which an enactment other than this Act—
(a) expressly confers a right of appeal; or
(b) provides expressly that there is no right of appeal.
(2) A party to proceedings in a District Court may appeal to the High Court against the whole or any part of any decision to which subsection (1) applies made by the District Court in or in relation to the proceedings.
[22] Mr Jefferson relied on the definition of “decision” in s 71 of the District Courts Act 1974 as including “a judgment and an interim or final order (other than an order under s 112)”. Finally he relied on the decision of MacKenzie J in S v B. His merit argument was that Judge McHardy will apply a s 61 assessment to the findings of fact he made in his s 60 judgment. For practical purposes then, his client, the mother, has no opportunity to challenge the finding of violence against her in the s 61 assessment. Therefore, the finding of violence is a decision and so akin to an order, or has finally determined the issue of violence, and so can be appealed now.
[23] It is a basic proposition of course, that s 143 has to be interpreted in its context and in the light of its purpose. As we have seen, s 143 reflects a statutory policy common in the Domestic Violence Act 1995 s 91, the Care of Children Act
2004 s 143, and the Family Proceedings Act 1980 s 174, to limit appeals against decisions which fall short of dismissing or finally determining the proceedings. The phrase “the proceedings” or “proceedings” is not defined in s 8 of the Care of Children Act 2004.
[24] I think that in this case, the “proceedings” as the term is used in s 143(1), are the applications for Parenting Orders. Sections 60 and 61 only engage because of allegations of violence made by each partner against the other. The reason why the s 61 hearing has an estimated time of two days is not because of the s 61 analysis, but because the Judge will be hearing evidence and argument on the final content of the Parenting Orders. Counsel agree on that. As I have already noted, both counsel agree also that the Judge will likely find that the violence between the parties is not relevant to the terms of the Parenting Orders between each parent and the child.
I am comforted by that agreement which is reinforced by the submissions of counsel for the child who records a good relationship between the child and each parent. At present the child is staying over in both homes.
[25] There are obvious policy reasons for Parliament preventing satellite litigation; appeals to the High Court in the course of the Family Court resolving the issues in a set of proceedings. The goal of this litigation in the Family Court is for the Court to settle the shared parenting of this child because the parents themselves cannot agree. I think the restraints on appeals in each of the Domestic Violence Act
1995, Care of Children Act 2004, and Family Proceedings Act 1980 are intended to ensure that the whole process is completed in the Family Court before there is a right of appeal.
[26] The Care of Children Act 2004 statutory provision, s 143(1)(a) additionally specifically excludes interlocutory or interim orders. I think that makes it even more clear that the purpose is to allow appeals only of final determination of the proceedings. Section 143(1)(c) “otherwise finally determine the proceedings” sums up the statutory policy.
[27] It cannot be argued, and was not, that the findings of family violence in this case determined the proceedings, the Parenting Orders applications. Counsel also agreed that, although they were each reasonably confident that the findings would determine the s 61 assessment, the Judge was careful not to make that determination.
[28] Given that I have to choose, I prefer to follow Venning J’s reasoning. This appeal is outside the jurisdiction of this Court to hear. The findings of domestic violence made by the Judge under s 60 are not orders. They do not dismiss the proceedings. They do not otherwise finally determine the proceedings.
[29] The appeal is struck out. [30] Costs are reserved. Fogarty J
3