CT v VK HC Dunedin CIV 2009-412-1023

[2010] NZHC 478

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

IN THE HIGH COURT OF NEW ZEALAND

DUNEDIN REGISTRY

CIV-2009-412-001023

BETWEEN  CT

Appellant

ANDVK Respondent

Hearing:         14 April 2010

Appearances:  Ms J Rolfe for Appellant

Ms R Crossman for Respondent

Judgment:      14 April 2010

(ORAL) JUDGMENT OF LANG J

[on appeal against making of final protection order]

Solicitors:

Jenny Beck, Dunedin Anita Chan, Dunedin Rodgers Law, Dunedin

T V K HC DUN CIV-2009-412-001023  14 April 2010

[1]      Mr T and Ms K lived together in a defacto relationship for approximately 22 years.   From time to time they parted company. That is an issue to which  I shall return shortly.  The relationship appears to have finally come to an end, however, on 2 October 2009 when Ms K left the property in which the parties had been living. She sought legal advice and obtained an interim protection order against Mr T on a without  notice  basis  on  7  October  2009.  She  later  sought  an  order  rendering  the interim  order  final. Mr T opposed  that  application  and  it  was  the  subject  of  a defended hearing on 17 November 2009.

[2]      At the conclusion of the hearing, His Honour Judge Coyle delivered an oral judgment  in  which  he  granted  the  application  and  issued  a  final  protection  order under s 14 of the Domestic Violence Act 1995.

[3]      Mr T now challenges the making of the final order on appeal.

The approach to be taken on appeal

[4]      The power to make a protection order is contained in s 14 of the Act which provides as follows:

14     Power to make protection order

(1)     The Court may make a protection order if it is satisfied that—

(a)     the respondent is using, or has used, domestic violence against the applicant, or a child of the applicant's family, or both; and

(b)     the making of an order is necessary for the protection of the applicant, or a child of the applicant's family, or both.

...

(3)        Without limiting section 3(4)(b) of this Act or the matters that the Court may consider in determining, for the purposes of subsection (1)(b) of this section, whether the making of an order is necessary for the protection of the applicant, or a child of the applicant's family, or both, where some or all of the behaviour in respect of which the application is made appears to

be minor or trivial when viewed in isolation, or appears unlikely to recur, the Court must nevertheless consider whether the behaviour forms part of

a pattern of behaviour in respect of which the applicant, or a child of the

applicant's family, or both, need protection.

(4)For the avoidance of doubt, an order may be made under subsection (1) of this section where the need for protection arises from the risk of domestic violence of a different type from the behaviour found to have occurred for the purposes of paragraph (a) of that subsection.

(5)     Without limiting the matters that the Court may consider when determining whether to make a protection order, 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 behaviour in respect of which the application is made; and

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

[5]      The leading authority as to the manner in which the Act is to be applied for present purposes is the  decision of the  Court of  Appeal in Surrey  v Surrey [2008] NZCA 565; 2010 NZFLR 1. In that case the Court took the opportunity to discuss the approach that this Court should take when hearing an appeal against an order made under s 14 of the Act. The Court said:

[67]     There is a two-pronged test in s 14(1) of the DV Act (see Appendix I

at para [90]). Both limbs must be satisfied before a court can issue a protection order. There must first be a factual finding that the respondent is using or has used domestic violence against the applicant, or a child of the applicant’s family, or both. “Domestic violence” is defined widely under s 3 of the Act (see at para [88]). Any factual finding of this nature would be reviewable on ordinary appellate principles, as outlined in Austin, Nichols. When reviewing factual findings of this nature, however, an appellate court will need to be cognisant of any advantage the Judge appealed from has had from seeing and hearing the witnesses (see discussion in R v Munro at paras [73] – [84]).  In this case, as noted above at para [2], the factual findings of Judge Costigan as to past violence were not, however, challenged on appeal and so Fogarty J was not called upon to revisit them

[68]     Under the second limb of s 14(1), there must then be a finding that the making of an order is necessary for the protection of the applicant, or a child of the applicant’s family, or both.  This is an evaluative decision made by the Judge, taking into account all relevant factors (see at para [38] above). We consider that Fogarty J was correct to categorise the issue of necessity as a  discretionary  decision  for  appellate  purposes  and  thus  as  one  that  is  not subject to the Austin, Nichols analysis (see Blackstone v Blackstone (2008) 19 PRNZ 40 at para [8].

[69]     This means that to succeed in an appeal, an appellant must show that the  Judge  acted  on  a  wrong  principle,  that  he  or  she  failed  to  take  into account some relevant matter, that he or she took account of some irrelevant matter, or that he or she was plainly wrong – that is, that the Judge could not legitimately have  come  to  the  conclusion that  he  or  she  did.   Treating the decision  as  to  whether  a  protection  order  is  necessary  as  discretionary  is consistent  with  the  requirement  in  s  5(2)(b)  of  the  DV  Act  that  matters should be dealt with expeditiously.

The grounds of appeal

[6]      In  this Court, as in the  Court below, Mr  T does  not challenge the  fact that incidents  of  domestic  violence  had  occurred  during  the  course  of  his  relationship with  Ms  K. That  is  probably  not  surprising  given  the  fact  that  in  2005  he  was convicted  of  assaulting  Ms  K.       That  charge  arose  as  a  result  of  an  incident  that occurred when Mr T assaulted Ms K in circumstances where he was holding a knife. That  caused  the  parties  to  separate,  but  within  a  matter  of  weeks  they  were  back together.

(i)       Factual finding in relation to the incident on 2 October 2009

[7]      The  Judge  made  one  factual  finding,  however,  that  Mr  T  challenges  on appeal.  This relates to the circumstances in which Ms K came to leave the home on 2 October 2009.  She said in her affidavit that she had an argument with Mr T on that date.  As a result, she decided to leave the home and packed her belongings in a bag. She said that Mr T came and pulled items out of the bag and also threatened to punch her.

[8]      During the hearing before Judge Coyle, Mr T accepted that an incident had occurred on 2 October 2009.  He said, however, that he had done no more than take items out of her bag.  He denied threatening to punch Ms K.  The Judge rejected Mr T’s explanation and accepted the evidence given by Ms K on this point.  The Judge said:

[11]     Whilst I have indicated that Mr T has accepted that there has been domestic violence, there are some issues in which there is a conflict in the evidence.  For example, in relation to the incident on 2 October, whilst Mr T acknowledges that he got angry and took Ms K’s bag and pulled some of her clothes  out  of  it,  he  says  that  was  the  extent  of  what  occurred. Ms  K, however, says it went beyond that and that Mr T told her that she had better get out or he would then punch her.   That version of events was not put to Ms  K  in  cross-examination.    She  was  re-examined  on  that  issue  and  the manner  in  which  she  gave  evidence  indicated  to  me  that  she  was  clearly talking  about  something  she  recalled. I  prefer  Ms  K’s  evidence  in  that regard and find that whilst there was an argument over the separation with Mr  T  pulling  Ms  K’s  clothes  out  of  the  bag,  i  find  as  a  fact  that  he  also threatened to punch Ms K.  That is clearly psychologically abusive.

[9]      As will be evident from the passage to which  I have earlier referred at [5], this Court must apply the Austin Nicholls principles in hearing an appeal against a factual issue such as this.  This means that the Court must adopt its own view of the facts based on the evidence in the court below.

[10]     In doing so, however, and in accordance with the words of caution set out in Surrey v Surrey at [67], the Court must give adequate weight in a case such as this to any advantage that the Judge may have had as a result of having had the opportunity

to see and hear the witnesses.  The weight that an appellate court should give to any advantage  enjoyed by the trial court was also expressly preserved by the  Supreme Court in Austin Nicholls at [5].

[11]     In the present case, I consider that Judge Coyle was in a unique position to make  a  factual  finding  regarding  the  issue  of  whether  or  not  Mr  T  threatened  to punch Ms K on 2 October 2009.  He had the opportunity of seeing both parties and hearing  them  give  evidence.           Essentially  the  contest  was  between  the  two  oral versions of events, because there was no other evidence from which the Judge could reach his conclusion.

[12]     In those circumstances I find it impossible to say that the Judge was wrong.  I therefore  propose  to  proceed  on  the  basis  that  the  incident  on  2 October  2009 involved a threat by Mr T to punch Ms K.

(ii)      Was it necessary to make a final protection order?

[13]     This leads to the second issue, which is the crux of the present appeal.   The issue is whether it was open to the Judge to conclude on the evidence before him that

it was necessary to make a final protection order.

[14]     The  decision  of  the  Court  of  Appeal  in  Surrey  is  also  now  the  leading authority in relation to this aspect of the appeal.  In Surrey the Court said:

[37]     While we accept that even reasonable fears do not automatically lead

to the making of a  protection  order,  where  a  victim's  fears  are  based on having been subjected to a pattern of recent serious domestic violence, as in this case, it is unlikely that a court could rationally refuse to grant  a

protection   order,   absent   very   strong   indications   that   the   order   is   not necessary  (for  example,  because  the  perpetrator  is  imprisoned  with  no possibility of contact or alternatively is hospitalised with a serious illness or some  such  matter).  See,  for  example,  A  v  B  [Protection  order]  [2008] NZFLR 65, discussed in Appendix II at paras [119] - [121].

[38]     The assessment of necessity under s 14(1)(b) requires a broad-based assessment  by  the  Court  of  the  need  for  protection  in  the  future,  having regard to both the objects of the DV Act and the statutory factors set out in s 14, as well as any other relevant factors. In Appendix II we provide a more detailed discussion of the test of necessity and an analysis of previous case law on that issue.

[39]     As is clear from the discussion in Appendix II, the level of risk of future  violence  will  obviously  be  a  relevant  factor  in  assessing  necessity. The Act does not, however, envisage that there will be a full inquiry into risk levels with associated detailed expert evidence. This would be inconsistent with  the  requirement  in  s  5(2)(b)  of  the  DV  Act  that  access  to  the  Court should  be  as  speedy,  inexpensive  and  simple  as  is  consistent  with  justice. The  ascertainment  of  future  risk  is  in  any  event  a  notoriously  difficult exercise, even with expert evidence and the use of risk assessment tools (see Beecher-Monas,    Evaluating    Scientific   Evidence:    An    Interdisciplinary Framework for Due Intellectual Process (2009), pp 139 - 140).

[40]        In our view, the scheme of the DV Act envisages that 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.  It  is implicit in s 14(1)(a), (5)(a) and (5)(b) that the nature and seriousness of past domestic violence is relevant to assessing whether an order is necessary for the  protection of  the  applicant,  or  a  child  of  the  applicant's  family,  in  the future. It is also relevant under s 14(3) to consider if there has been a pattern of past violence. This is understandable. The single most robust predictor of future violence is a history of multiple prior offences (see Melton and others, Psychological Evaluations for the Courts: A Handbook (2007), p 316).

[41]     Because   a   wide   range   of   behaviour   falls   under   the   rubric   of "domestic violence", as defined by s 3, the necessity for a protection order must be assessed against the seriousness of the past domestic violence. The more serious the possible future violence, a lesser risk of it reoccurring may justify a protection order than would be the case where the possible future violence is less serious.

[42]     The nature and seriousness of past violence may be a predictor of the type  of  violence  that  may  occur  in  the  future.  While  the  fact  that  past violence was serious does not in itself make it more likely to reoccur, any future violence, if it does occur, is more likely to be of a serious character than  if  the  past  violence  was  relatively  minor.  We  note,  for  example,  that offenders  who  have  demonstrated  a  pattern  of  serious  offences  involving penetrative  sexual  assaults  pose  a  higher  risk  of  committing  such  serious offences in the future than if the past  sexual assaults had been minor (R v Peta [2007] 2 NZLR 627 at para [45]).

[15]     In the present case the Judge was faced with a situation in which violence at a relatively serious level had occurred  in  2005. The  use  of  a  knife  and  a  physical

assault will always be regarded seriously by the Court in this context, as it would it any other  context.   Physical  violence  at  that  level  leads  to  the  real  risk  of  serious injury.

[16]     The Judge also accepted that there had been elements of psychological abuse about Mr T’s  treatment of Ms K during the years in which they were in a relationship.  He accepted that Mr T had, on occasion, abused Ms K and called her derogatory names. The Judge also had the evidence of the incident that occurred on 2 October 2009, in which a threat of physical violence was made.   That being the case, the Judge accepted that violence had occurred in the past and that this provided an evidential basis for the prospect that violence might occur in the future.

[17]     Next, the Judge had regard to, as he was required to do by s 14(5) of the Act, the perception held by Ms K.  He took the view that she held a genuine fear of harm

at the hands of Mr T in the future.  He also referred, in some detail, to his assessment

of Ms K as being a person who was particularly vulnerable.  Ms K is a person who can  neither  read  nor  write.  The  Judge  took  the  view  that  she  was  at  a  distinct disadvantage  in  many  respects  to  Mr  T,  who  he  took  to  be  a  person  of  average intellectual capacity.  The Judge’s description of Ms K in this context is as follows:

[8]      The relevance of that is that it is my assessment, having listened to Ms K give her evidence, that she is particularly vulnerable.  She is unable to read and write.   That in and of itself does not make her vulnerable but it is quite clear to me in listening to her evidence that she is at times naive and simple  in  her  approach  to  life.   She  at  times  needs  assistance  to  navigate what for others would be the most simple of tasks, for instance dealing with Work  and  Income.          In  re-examination  it  became  apparent  that  she  is  at present receiving significant assistance from someone she named as Grant to engage  in  courses  to  assist  her  with  her  reading  and  writing  and  also assistance in dealing with Presbyterian Support and Mental Health Services. I  am  told  there  is  likely  to  be  an  assessment  as  to  the  extent  of  Ms  K’s intellectual functioning and no doubt that will be useful for her in navigating her  life  in  the  future  and  in  accessing  the  provision  of  supports  that  are necessary.

[9]      Thus, this is not a situation where Mr T, who describes himself as being  of  average  intelligence,  and  Ms  K  are  on  a  level  playing  field  as  it were.   Because  of  Ms  K’s  limitations,  I  find  that  she  is  emotionally  and psychologically  vulnerable.     That  is  particularly  relevant  in  my  view  in considering  the  issues  of  necessity  as  well  as  whether  there  has  been psychological  abuse.       Mr  T  accepted  that  he  at  times  had  been  verbally abusive  towards  Ms  K  and  Ms  K  describe  the  type  of  language  that  was directed  towards  her  as  including  references  to  her  being  a  “bitch”  and  a

“slut”.  In the context of Ms K’s vulnerabilities, it is my view that that type

of   derogatory   language   is   psychologically   abuse   because   it   is   clearly designed to put down and humiliate Ms K.

[18]     Finally, the Judge had regard to the fact that Mr T acknowledges that he has a drinking problem.  Virtually all of the incidents that have occurred during the course

of the relationship have followed a period in which he had been drinking to excess. The Judge noted that Mr T had remained abstinent since the making of the interim protection order, and said that this was to his credit.  The Judge considered, however, that there was always a risk that Mr T would resume drinking at some stage in the future.   If  that  occurred  he  was  likely to,  in  the  Judge’s  words,  “wheedle  his  way back”  into  Ms  K’s  life.   Should  that occur  and  should  he  continue  drinking,  there was  a  real  risk  that  further  violence  of  either  a  physical  or  psychological  nature would ensue.

[19]     These factors led the Judge  to conclude that it  was necessary in terms  of s

14(1)(b) to make the final protection order.

[20]     Counsel for Mr T urged me to reject the Judge’s assessment of Ms K as being

a person  who  was  of  particular  vulnerability. She submitted that the  evidence suggested  that  Ms  K  was  capable  of  managing  her  daily  life  with  a  considerable degree  of  aptitude. Ms  K  also  confirmed  in  cross-examination  that  she  was  no longer afraid of Mr T and that if he presented himself at her door again she would be able to tell him to go away.   Counsel submitted that the Judge was therefore wrong to categorise Ms K as being a person of particular vulnerability.

[21]     Counsel  submitted  also  that  the  Judge  had  failed  to  adequately  take  into account  the  fact  that  Ms  K  had  herself  been  guilty  of  acts  of  psychological  and physical   abuse   towards   Mr   T.  She   submitted   that   these   admitted   incidents demonstrated that Ms K was not particularly vulnerable and that this suggested that a final protection order was not necessary.

[22]     I am not prepared to overturn the Judge’s conclusion regarding Ms K’s vulnerability. There is independent evidence to  suggest  that  she  suffers  from  a degree of disability that normal persons do not have.  This is reflected by the fact

that she has the need of help from outside sources in order to be able to go about her everyday life.  It is also an accepted fact that she can neither read nor write.  That, in itself,  does  not  produce  a  state  of  vulnerability  but  it  can  leave  a  person  at  a disadvantage, and particularly vulnerable to psychological abuse.

[23]     The Judge had the opportunity to observe Ms K giving evidence and was in a position to form his own view regarding her capabilities and mental state.   That is not an advantage that this Court enjoys and I cannot say that the Judge was wrong to describe Ms K as he did.

[24]     The  transcript  of  the  hearing  also  reveals  that  Ms  K  agreed  with  virtually every proposition that counsel for Mr T put to her.   Whilst counsel for Mr T relied on that fact for another purpose, I consider that it may suggest that she is a person who does not find it particularly easy to disagree with propositions that others put to her.       This,  in  itself,  gives  rise  to  a  cause  for  concern  should  Mr  T  endeavour  to reconcile with her in the future.

[25]     In short, the case for Mr T on appeal is that the evidence was not sufficient to allow the Judge to conclude that Ms K had a reasonable fear of future harm at the hands  of  Mr  T.   That  is  a  often  an  essential  component  in  determining  whether  a final protection order will be necessary.

[26]     I  agree  with  counsel  for  Mr  T  that  there  are  aspects  of  the  evidence  that support the proposition that a final protection order is not necessary.   For the most part they are the admissions by Ms K to which I have referred.  Taken at face value, they suggest that she does not consider herself to be at future harm from Mr T.  As I have already indicated, however, I have a concern that Ms K might be the type of person who would agree with any proposition put to her in cross-examination.

[27]     Moreover, as I indicated to counsel during the hearing, the answers that Ms K provided to counsel in the course of a Court hearing may not give a true indication of how she would react in the event that  Mr T was  to  present  himself  at  her  door seeking refuge in a time of need. I consider that, faced with that situation, Ms K’s

reactions are likely to be completely different to those she indicated she would give

to counsel during the hearing.

[28]     I  consider  that  matters  were  placed  in  perspective  in  a  passage  of  the evidence during questions that the Judge put to Ms K.   In this exchange the Judge was  clearly  endeavouring  to  ascertain  just  why  Ms  K  felt  that  she  needed  the protection of a final order.  The exchange is as follows:

Q.Ms K, in response to a question from Mrs Beck, you said that you’re not afraid of Mr T now?

A.     No.

Q.     Why are you not afraid of him at the moment?

A.‘cos he’s, um, ‘cos he’s, - oh, he’s out of my life and I’ve – don’t have nothing to do with him.

Q.And if I don’t make the protection order today, do you think Mr T will stay out of her life?

A.     Well I hope so, yes.

Q.And Mrs Beck was suggesting to you that if the order wasn’t there and Mr T came back and pleaded with you to get back together that you’d simply be able to tell him to go away?

A.     Yes.  I just have to tell him to go away and just stay out of my life.

Q.     Do you think you could do that?  Do you think you’re strong enough

to do that?

A.     I think I will be, yes.

Q.So what’s changed for you, because you’ve said earlier you couldn’t and that Mr T would manipulate his way back into your life –

A.Oh,  he  would  if  he  -,  if  he  was  on  the  booze  he  would.  If  he  was drinking again he would come back in my life and that would be it.  I just sort of can’t handle it when he’s on the booze.

Q.     Why can’t you handle it?

A.     Because he gets views and he’ll just come back in my life and he’ll (inaudible 999) inside back in there and I don’t want that any more. He’s just got to stop his drinking.

Q.     Can you help me here, Ms K. A.     I’ll try.

Q.If Mr T’s drunk, why does that make it harder for you to get rid of him than easier for you?

A.     Because he won’t go ‘cos he’s stubborn and he’ll just keep on going and going and he’ll just, you know, ...

Q.     So are you saying that when he’s sober, if you said to him, “Go away.

I don’t want you,” he would just go away?

A.     Yes.

Q.But  when  he’s  drinking,  he  wouldn’t  go  away  and  would  wear  you down?

A.     Yes.

...

[29]     This passage demonstrates that Ms K may not have a fear of Mr T when he is sober  and  when  all  other  things  are  equal. Her  concerns  arise  in  circumstances where Mr T has been drinking.  Her fear is that, if that should occur in the future, he may  endeavour  to  accost  her  and  persuade  her  to  take  him  back. Based  on  past experience and her knowledge of his personality, she clearly holds the fear that she will not be able to resist any advances that he might make.  That, in turn, would lead to a resumption of the relationship and the likelihood of future violence once Mr T

has consumed alcohol.

[30]     I  consider  that  these  are  realistic  fears  on  Ms  K’s  part  given  what  has happened in the past.  They cannot be ruled out as being unreasonable because of the fact  that  Mr  T  accepts  that  he  is  an  alcoholic.   He  also  accepts  that  he  has  been abstinent for periods of up to eight months in the past before resuming his drinking habits.  This suggests to me that it will be some considerable period before the Court could  be  truly  confident  that  Mr  T  has  managed  to  get  his  problems  with  alcohol under control.

[31]     I therefore agree with the Judge that Mr T’s alcoholism, coupled with Ms K’s state  of  vulnerability,   were  factors  that  rendered  it  necessary  for  the  interim protection order to be made final.  I do not consider that the Judge took into account irrelevant considerations or that his conclusion could be said to be plainly wrong.

[32]     For these reasons the appeal against the Judge’s decision is dismissed.

[33]     I add, however, that there must come a time when the protection order will no longer be necessary.  When that time arrives, it remains open to Mr T to apply to the Family  Court  for  an  order  that  the  protection  order  be  discharged.  I  anticipate, however, that that time is still some way off.   The Court will need to be satisfied at that stage that Mr T has remained abstinent from alcohol during the period leading up to the application for a discharge of the protection order.

Lang J