C v H
[2022] NZHC 3145
•29 November 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2022-425-000072
[2022] NZHC 3145
BETWEEN C
Appellant
AND
H
Respondent
Hearing: On the papers Counsel:
Appellant in person
No appearance by or for the Respondent
Judgment:
29 November 2022
JUDGMENT OF NATION J
Introduction
[1] Mr C sought to appeal a decision in a minute of Judge Doyle declining to grant a without notice application for a protection order. Judge Doyle declined the application stating:
The application fails to establish the high threshold set for without notice orders … in that;
… there is not a clear case on the merits …
… I am not satisfied on the evidence that the requires form of harm or risk … would arise if the application proceeded on notice. The applicant’s own evidence is that the respondent has been inflicting the type of behaviour he complains of for at least the last 30 years so it is difficult to understand the immediate urgency behind this without notice application;
… the rights of the respondent … to be heard have not been displaced by establishing that a risk of harm/hardship might arise if the application were on notice.
C v H [2022] NZHC 3145 [29 November 2022]
… I am also advised that the applicant is the subject of a protection order and has twice applied to discharge that order (2020 and 2022) then discontinued his application. Against that background there is some concern that the applicant may be using this process to further harass the respondents.
[2] Mr C initially sought to file a criminal notice of general appeal. That was rejected. He then purported to file a further appeal but this was not accepted because it was not in the form required by the High Court Rules 2016, notwithstanding staff advising him of the relevant rules and what they require.
[3] As Duty Judge, I was asked to consider how the Registry should deal with the forms filed. There is an issue as to whether this Court has jurisdiction to hear the purported appeal.
Law
[4] Section 177 of the Family Violence Act 2018 (the Act) governs appeals to the High Court:
177 Appeals to the High Court
(1) 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.
…
(3) A party to proceedings in which there is made a decision to which subsection (1) applies, or any other person prejudicially affected by the decision, may appeal to the High Court against the decision.
(4) The High Court Rules 2016 and sections 126 and 130 of the District Court Act 2016, with all necessary modifications, apply to an appeal under subsection (3) as if it were an appeal under section 124 of that Act.
…
(7) The decision of the High Court on an appeal to that court under this section is final (subject to section 179 [which relates to appeals to the Court of Appeal])
[5] There is authority and commentary doubting whether there is a right of appeal from a decision refusing to make a protection order on a without notice basis.1 The authors of Family Law – Adult Relationships suggest a decision declining an application for a protection order is subject to judicial review.2
[6] Decisions declining without notice applications for a protection order have been challenged by judicial review.3
[7] In certain cases, Judges have dealt with purported appeals against such decisions in a pragmatic way that has minimised the inconvenience and burden of an appeal on other parties affected and also the Court as far as hearing time is concerned. In two cases, the Court has allowed an appeal to proceed on a without notice basis before dismissing it on the merits.4
[8] In the most recent such case, Simeon v Simeon-Campbell, Gendall J observed the Family Court Judge had simply directed that the application was to proceed on notice.5 The purported appeal was described as being without notice. Initially Churchman J directed in a minute that the application was to proceed on notice. Several months later Palmer J dispensed with service on the respondent for “reasons outlined in the minute”.6 These reasons were not disclosed in Gendall J’s decision but he went on to hear the appeal without the respondent. He dismissed the appeal on the grounds that making a protection order without notice in the circumstances would have denied the respondent natural justice. It was reasonably arguable the respondent could have been readily located and, having regard to the delay after the application was filed, any real threat of family violence had not been/was not sufficiently immediate to require an order to be made on a without notice basis.
1 B v Family Court at Masterton [2014] NZHC 3057, [2015] NZFLR 307 at [13]; Dela Rue v Dela Rue [2004] NZFLR 320 (HC); and Bill Atkin and others Family Law Service (online ed, LexisNexis) at [7.646].
2 Cuba Family Law, Debra Wilson and Sharon Chandra Family Law – Adult Relationships (online ed, Thomson Reuters) at [FV75.04].
3 Ritchie v Department for Courts HC Auckland M1164-PL02, 20 September 2002; B v Family Court at Masterton, above n 1; and CRA v Family Court at Blenheim [2015] NZHC 1604, [2015] NZFLR 731.
4 Dela Rue v Dela Rue, above n 1; and Simeon v Simeon-Campbell [2022] NZHC 2029.
5 Simeon v Simeon-Campbell, above n 4, at [5].
6 At [7].
The scheme of the Act
[9] A protection order is an order or temporary order made under s 79 of the Act.7 A temporary order is “an order of limited duration that is made on an application without notice”.8 Section 79 outlines the matters the Court must be satisfied of to make a protection order. A protection order can be applied for on notice or without notice. An on notice application may be made under s 60. Without notice applications are governed by ss 75 to 78. Section 75 provides the Court may make a protection order on an application without notice only if satisfied the delay caused by proceeding on notice would or might involve a risk of harm and/or undue hardship to the applicant and/or a child of the applicant’s family. Section 76 introduces the idea of a temporary order. It states:
(1) A protection order made on an application without notice is a temporary order that, unless sooner discharged, becomes final by operation of law 3 months after the date the order is made.
(2) This section is subject to sections 147 to 155.
[10] If a temporary order is made following an application without notice, the respondent has rights under s 77. They may notify the Court under s 147 they seek to be heard on whether a final order should be substituted for the temporary order; apply under s 159 for a modification or discharge of the standard condition about weapons; apply under s 108 for a variation or discharge of any special conditions; apply under s 109 for the order to be discharged; and/or, if a direction is made under s 188, notify an objection to the direction under s 189. An associated respondent receives comparable rights.9
[11] Respondents to temporary orders are protected by s 149 which states no temporary order may become final unless the respondent has been served with a copy of the order no later than the 11th day before the three month period elapses and the respondent has not notified the Court they wish to be heard before the period elapses.
[12]Section 107, entitled “[d]uration of protection order”, states:
7 Family Violence Act 2018, s 8.
8 Section 8.
9 Section 78.
(1) A temporary protection order continues in force until—
(a)the order becomes a final order under section 148(1); or
(b)the order lapses under section 149(4); or
(c)the order is discharged under section 153 or 155.
(2) A final protection order continues in force until it is discharged under section 109.
[13] A temporary protection order may also be made in situations other than an application without notice, for example following a breach of a police safety order.10
[14] The differences in consequence are consistent with a temporary protection order being in the nature of an interim order. A temporary protection order will become final only if the respondent chooses not to challenge it after receiving notice or the Court decides to make it a final order after an on notice hearing.
Purposive approach
[15] Section 10 of the Legislation Act 2019 states the meaning of legislation must be ascertained from its text and in the light of its purpose and context.
[16] The purpose of the Act is to stop and prevent family violence.11 A court exercising a power conferred by the Act must be guided in the exercise of the power by that purpose.12 It is consistent with the purpose of the Act that complainants who allege family violence, whose applications for a without notice temporary protection order are dismissed, have a way of challenging that decision. But, one of the many principles to guide the achievement of the Act’s purpose is that access to the Court should be as speedy, inexpensive and simple as is consistent with justice.13 It follows, if there is to be a remedy for an applicant whose application for a without notice protection order is declined, such should be the swiftest, cheapest and simplest remedy available so long as that is consistent with justice.
10 Sections 46, 47, 52, 53 and 54.
11 Section 3(1).
12 Section 3(2).
13 Section 4(o).
[17] It is consistent with the purpose of the Family Violence Act and the principle that the remedy for a party aggrieved at being refused a temporary protection order on a without notice application should be to continue with the application in the Family Court on an on notice basis rather than to pursue an appeal to the High Court which would have to be subject to the High Court Rules.
Judicial treatment
[18] In Dela Rue v Dela Rue, a case from 2003 decided under older legislation, Priestley J considered an appeal against a decision declining to make the temporary protection order sought.14 He was concerned whether the High Court had jurisdiction to entertain an appeal at all. Counsel submitted the Court clearly had jurisdiction, relying on the equivalent provision to s 177 of the Act, s 91 of the Domestic Violence Act 1995, which stated a party could appeal a decision making or refusing to make an order.
[19] Priestley J noted the appellate provisions of the District Courts Act 1947 applied to an appeal under s 91 of the Domestic Violence Act 1995. Priestley J had considerable unease over the fact the High Court was asked to exercise its appellate jurisdiction in circumstances where the respondent was unrepresented. Counsel before Priestley J countered this by submitting there was no prejudice to the respondent because their situation was identical to what it was in the Family Court where the respondent was similarly unaware of the without notice application.
[20] Priestley J emphasised that he had not heard full argument but referred to s 72 of the District Courts Act which provided for the notice of motion (now a notice of appeal) to be served on all parties directly affected by the appeal and the High Court’s ability to direct that notice of the appeal be served on all or any parties to the proceedings. Priestley J thought, having regard to the mandatory requirement the notice of motion be served, quite apart from natural justice considerations, it would not be appropriate for the High Court to entertain an appeal under the Domestic Violence Act in a situation where the respondent was unaware the hearing was taking place. He recorded his “huge reservations” over whether he was correct to assume the
14 Dela Rue v Dela Rue, above n 1.
Court could proceed with the appeal, specifically doubting whether an appeal from a lower Court’s refusal to proceed without notice could properly proceed without notice. However, in keeping with the observation above at [7], he went on to consider the appeal because it was moot so far as the appeal before him was concerned.
[21] Priestley J found it would be unreasonable to expect Family Court Judges, and in particular duty Judges, who are sometimes required to deal with 20 or 30 urgent without notice applications each day to give reasons as to why they have made or declined to make the orders sought. He considered it a fair inference that, where the Court directs the application is to be heard on notice, the Judge has determined the threshold for proceeding without notice had not been made out. Priestley J found he would not, if he were approaching the matter de novo, have been satisfied the delay caused by proceeding on notice would necessarily entail a risk of harm or undue hardship justifying an order without notice.
[22] Section 177(4) of the Act states the High Court Rules 2016 apply to an appeal under the Act. Rule 20.6 states an appeal is brought when the appellant files a notice of appeal in the court, files a copy of the notice of appeal in the administrative office and, critically, serves a copy of the notice of appeal on every other party directly affected by the appeal. The ordinary procedure with an appeal is, as Priestley J observed, for the respondent or other party concerned to be notified and heard.
[23] Rule 20.7 empowers the Court to dispense with service on a party to a notice of appeal on any terms the Court thinks just. However, McGechan on Procedure notes it remains vital that affected parties be informed of the appeal, characterising the power as to cure irregularities such as a failure to serve within the time period provided. The authors observe, if notice of the appeal has not already come to the attention of the party concerned, such “would inevitably be a condition of any dispensation granted by the Court”. 15
[24] An appeal to the High Court against the refusal of a temporary protection order on a without notice application would thus likely have to proceed on an on notice basis. It would be contrary to the scheme and purpose of the Act for a party who has
15 Robert Osborne (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HR20.7.01].
not obtained a temporary protection order on a without notice basis to have a right of appeal to the High Court which would have to be on notice, when the alternative remedy would be for the applicant to continue with the application as being for a final protection order on an on notice basis.
The specialist nature of the Family Court’s jurisdiction
[25] Judges have recognised that there might be an error in the refusal of a temporary protection on a without notice basis. In B v Family Court at Masterton, Clifford J observed that the Family Court has to deal with large numbers of without notice applications.16 With the pressure of the work involved, there is some potential for a justified without notice application slipping through the cracks and being refused. In a proper case, there might need to be a remedy to fulfil the purpose of the Act due to the risk of intimidation, threatening behaviour or actual violence should an application proceed on notice.
[26] A grievance over the refusal of a without notice application for the refusal of a temporary protection order where continuation on notice is inappropriate can adequately be provided through the availability of judicial review. Such an application, if contested, would be dealt with after a full hearing.
Care of Children Act analogy
[27] The Family Court is a specialist jurisdiction and other legislation recognises that judicial decisions of an interim nature and/or on an interlocutory application should not be susceptible to challenge by an appeal to this Court.
[28] Section 143 of the Care of Children Act 2004 provides a right of appeal against a decision of the Family Court or District Court in other than criminal proceedings making or refusing to make an order. However, that provision explicitly excludes “an interlocutory or interim order”. Section 143(3) provides, where an interim or interlocutory order is made, a party to proceedings may with leave of the Family Court or District Court appeal to the High Court against that order. In Roche v Jansen,
16 B v Family Court at Masterton, above n 1.
Toogood J determined there was no right of appeal (with or without leave) against a decision of the Family Court refusing to make an interlocutory order under the Care of Children Act.17
Conclusion
[29] With due regard to the text, purpose and content of the Act, I have determined that Parliament did not intend there to be a right of appeal against a decision ordering an application for a temporary protection order to proceed on notice. As High Court Judges have observed, the Family Court deals with a very large volume of without notice protection order applications in its specialist jurisdiction. Family Court Judges are well equipped to consider those applications. If a Family Court Judge has determined an application should proceed on notice it will be because, as Priestley J observed, they consider the threshold for a without notice application has not been met.
[30] The definition of protection order includes a temporary order and a final order. Because a final order is still available it cannot be said that a decision directing an application proceed on notice is a decision refusing to grant a protection order. It will not finally determine the application for a protection order. In substance these decisions are more akin to a procedural direction than a refusal of an order. The fact decisions on without notice applications have been produced on apparently standard form minutes is supportive of this interpretation. It would not be consistent with the purpose and relevant principles of the Act for the Court to determine that the refusal of a temporary protection order on a without notice application is to be construed as the refusal of an order amenable to appeal under s 177 of the Act.
[31] Purported appeals against the refusal of a temporary protection order would be general appeals requiring the High Court Judge to come to their own view of the merits of the application. The Judge would also have to determine whether the appeal should be allowed to proceed without notice but in the context of an appeal subject to the High Court Rules and not just in the context of an application that was before the Family Court.
17 Roche v Jansen [2017] NZHC 207.
[32] The process under the Act is robust in the sense that, if a without notice order is made, the respondent has rights under the Act and will be able to challenge the order at a hearing. If a without notice application is declined, the applicant will still be able to seek protection through an on notice application. If, after hearing from the respondent, the Family Court Judge determines a protection order is inappropriate, the applicant will be able to appeal against that decision under s 177 of the Act.
[33] The conclusion I have reached does not mean the High Court would never be able to scrutinise the circumstances in which an application for a temporary protection order on a without notice application has been declined. If an applicant is dissatisfied with the decision of a Family Court Judge on a without notice application, technically the option of judicial review proceedings is available. It is likely however that it would be only in a truly exceptional case the aggrieved applicant would obtain the relief they seek by way of judicial review. In part, that would be because, in the context of the Act and the interests of justice, the more appropriate remedy would be for the aggrieved applicant to proceed with their application through the on notice proceedings that are already before the Family Court.
[34] For all these reasons, I rule that this Court has no jurisdiction to receive the purported appeal from Mr C against the refusal of a temporary protection order on his without notice application to the Family Court.
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