F v S HC Masterton M7/01

[2002] NZHC 65

IN THE HIGH COURT OF NEW ZEALAND
MASTERTON REGISTRY M7/01

BETWEEN F
Appellant

AND S
Respondent

Date of Hearing: 8 February 2002 (at Wellington)

Date of Judgment: 11 February 2002

Counsel: M J Sceats for Appellant
No appearance for Respondent

JUDGMENT OF DURIE J

Solicitors:
Logan Blathwayt, Masterton for Appellant
Bonnie Crampton-Smith, 28 Worksop Road, Masterton

Introduction

[1] This is an appeal against the Family Court’s refusal to discharge the standard restriction on the possession of weapons in a protection order in respect of the appellant’s former partner, the respondent, and her children. The appellant’s position is

(1) he has had guns for some years for recreational and commercial purposes but guns did not feature at all in the incidents of domestic violence that led to the protection order being made by the Family Court;

(2) that contact with the respondent has ceased and more particularly there have been no incidents of violence or threats since the protection order was made;

(3) that he has never had convictions for violence or offences of any sort other than certain traffic offences in 1986 and 1987;

(4) the appellant seeks to tender for pest control works and anticipates an increase in the number of available contracts from the Department of Conservation.

[2] The respondent has maintained an opposition to the application. That opposition has been based mainly upon assertions that the appellant is both volatile and irresponsible and therefore should not be possessed of weapons. In addition the respondent claims that the extent of the appellant’s past use of guns and his expectations of future pest control work is exaggerated. She does not deny that the appellant has never used weapons against her and has never threatened to do so but she has claimed that the appellant has harassed her since the date of the protection order by calling at her place of work at a fast-food outlet and in certain other ways. Nonetheless her main concern appears to have stemmed simply from a perceived hostility and volatility in the past.

[3] In this case the Judge gave little weight to the respondent’s allegations of continuing harassment, the Judge concluding that the respondent had not demonstrated that the condition prohibiting access to arms was necessary. However, the Judge was equally of the view that the appellant had not discharged the burden upon him of satisfying the Court that the condition was unnecessary. That conclusion rested primarily upon a further finding that Police support for the appellant’s application was not founded upon a full enquiry into the whole of the circumstances of the case.

[4] The Judge referred to the provisions of s 23(l) of the Domestic Violence Act 1999 which is as follows:

“(1) A Court must not exercise the power conferred by section 22 of this Act -

(a) To direct that the standard condition relating to weapons is not to be a condition of a protection order; or

(b) To discharge the standard condition relating to weapons -

unless the Court is satisfied that the standard condition relating to weapons is not necessary for the protection of the persons for whose benefit the protection order applies from further domestic violence.”

Background

[5] The parties’ relationship of some two years came to an end in June 1999 following an event in May of that year which involved, as the Court later saw it, violence on the part of both parties. A temporary protection order was made on the respondent’s application without notice to the appellant, in the usual way, and with the standard restriction on the possession and use of weapons. The appellant opposed the final order. In addition in the event that a final protection order was made, the appellant sought that there be no restriction on his access to his guns.

[6] When the matter came before the Family Court in November 1999, Judge Johnston focused upon two particular acts of domestic violence, one in 1998, the other soon after the temporary order and which involved verbal harassment of the respondent through a window in the early hours of the morning. The Judge found that there was domestic violence in the relationship generally and more particularly on those two occasions. The judgment made no reference to the appellant’s request to keep his guns. A final protection order was simply made and in the result the statutory condition constraining access to weapons applied.

[7] The appellant did not appeal. Instead on 26 April 2000, five months after the final protection order, and at a time when the appellant had entered into a relationship with a new partner, the appellant simply applied to have the weapons’ condition discharged. For that purpose the appellant had approached the Police for a clearance, an enquiry had been made and Police support for the application was given.

[8] That application did not in fact proceed. The respondent objected that the appellant had not appealed the original order and further, that the appellant had not paid the $300.00 awarded to her for costs. For failure to pay those costs the appellant’s application was struck out.

[9] The costs issue was resolved following the appellant’s second application on 13 October 2000. On that occasion, the respondent, through her solicitors, agreed with the appellant’s application. However subsequently, the respondent, acting for herself and continuing to act for herself from that point on, gave notice of her opposition. She filed two affidavits on the matter. It is instructive to note that in cross-examination the respondent acknowledged that her change of position came at the same time as some disagreement between the parties as to the appellant’s liability to pay moneys owing in respect of the respondent’s computer.

[10] The matter was further confused at the hearing itself by a further side issue. Police support for the application was in no uncertain terms the Police report stating that in the officer’s opinion it would be an injustice were the application declined. Judge Mill clearly took exception to this position in a hearing in March 2001. As the judgment acknowledges, the Judge himself sought the appearance of the officer concerned and then questioned him at some length. The Judge then concluded that the officer had “only a fraction of the information he should have had in coming to his conclusion”. The Judge then found that the officer was more hesitant about the matter after he had been questioned. The Judge then observed that he shared that hesitancy and accordingly the Judge found that the appellant had not demonstrated that the arms condition was no longer required.

Arguments and consideration

[11] For the appellant the primary contention on this appeal was that the Judge had unduly entered the arena and in then reaching a conclusion had given too much weight to evidence that would normally be inadmissible. Upon a brief review of the record the appellant’s contentions appeared to be entirely sustainable but the respondent was not present at the hearing and I reserved a decision to undertake a close reading of the notes of evidence. Of particular concern was the Judge’s examination of the Police officer which led to a conclusion that the officer had insufficient information on which to support the appellant’s application.

[12] The Judge found that the officer was not aware but ought to have been aware, of the findings of the Family Court in making the protection order in November 1999. The Police officer had considered only upon one incident as reported to the Police and which did not result in any charges. The Judge found that the officer had not considered the Family Court’s findings that there was in fact domestic violence in November 1998 and June 2000. The fact remained however that the appellant had not been convicted of an offence as a result of those events and that the degree of violence involved was not major.

[13] Secondly the Judge noted after cross-examining the officer that the enquiry into the appellant’s previous convictions was not complete. The officer had noted one traffic conviction on a blood alcohol offence. In fact there had been further offences. Here again, however, the appellant’s offending is entirely restricted to traffic offending and all of that relates to a period between May 1986 and March 1987.

[14] It seems plain that this additional information could not count for very much by itself, when weighed with other factors. It follows as a result that the Court in fact placed main weight upon one further item of information to which I now refer. The Judge noted (at paragraph [38] of the judgment) that the Police officer was unaware of the appellant’s violence towards a further partner with whom he had formed an association shortly after separating from the respondent. The Judge was clearly of the view that such violence had been perpetrated although the only evidence before him was an allegation to that effect in a second affidavit by the respondent sworn the day before the hearing. In that affidavit the respondent claimed that the appellant’s new partner had informed her of an incident with violent features. The evidence was hearsay. The appellant had formally objected to quite a deal of the respondent’s evidence as either hearsay or irrelevant, and in this instance he had grounds for further concern that he had not had the opportunity to reply to the respondent’s evidence.

[15] The Judge determined to receive all evidence, whether hearsay or not, apparently de bene esse, with the intention of reviewing the weight to be given to such evidence at the conclusion of the hearing. Section 84 of the Domestic Violence Act contemplates such a course and so indicates the Court’s inquisitorial role in dealing with matters of domestic violence. The section provides:

“In any proceedings under this Act (other than criminal proceedings), and whether by way of hearing in the first instance or by way of appeal, or otherwise, the Court may receive any evidence that it thinks fit, whether or not it is otherwise admissible in a Court of law.”

[16] In this case however, it is clear that the Judge simply accepted the evidence and relied upon it to make a finding that was crucial to the outcome. It is apparent that the Judge did not go on to consider the weight that might be attached to such evidence especially when the appellant had not been given the opportunity to respond to it. I am satisfied that the Judge erred in that respect. I also add that on this appeal I gave leave to the appellant to admit further evidence. By then the lady concerned was no longer associating with the appellant. She denied that there had ever been such violence or that she had ever told the respondent that there had been violence in that relationship.

[17] The appeal must therefore be allowed but in addition, I do not think a rehearing is necessary in order to determine that the condition relating to weapons should be discharged. Section 23(4) provides as follows:

“In determining whether or not to exercise any of the powers conferred by section 22 of this Act, -

(a) The need to protect those persons for whose benefit the protection order applies from further domestic violence is the paramount consideration; and

(b) Without limiting paragraph (a) of this subsection, the Court must, so far as is practicable, have regard to the following matters:

(i) Whether the persons for whose benefit the protection order applies consent to the exercise of the power in the manner proposed:

(ii) With respect to any domestic violence that is relevant in relation to the exercise of the power, the nature and seriousness of that domestic violence, and how recently that domestic violence occurred:

(iii) The effect that the terms of the standard condition relating to weapons is having, or will have, on the persons to whom the condition applies, or will apply, if the powers are not exercised in the manner proposed:

(iv) Such other matters as the Crown considers relevant.”

[18] In now considering the evidence in respect of each of the those items it seems clear that the appellant is entitled to the relief originally sought in his application. Particular weight is due to the fact that on the evidence there has been and is now very little contact between the parties. I note also that subsequent to the hearing before the Family Court the appellant has shifted to another city. There is also no evidence of violence or threats on the appellant’s part since the date of the protection order and there is no record of criminal offences apart from traffic offences the last of which was as long ago as 1987. The respondent’s opposition appears to have coincided with some dispute over computer payments. Accordingly the appeal is allowed and the matter is now referred to the Family Court with a direction to enter an order pursuant to s 22(2)(b)(i) discharging the standard condition relating to weapons.

[19] The respondent had not been represented by counsel but maintained an active opposition to this appeal. Recently she notified the Registrar that she would not be appearing at the hearing but even so her written opposition was set out in some detail. The appellant is entitled to costs. I had indicated to counsel that costs would be appropriate according to scale on the basis of category 1 band A but I now note that in the original proceedings before the Family Court, costs against the appellant were intentionally scaled down. Accordingly they will be scaled down here as well. There is an award of costs to the appellant in the sum of $600.00 with disbursements as fixed by the Registrar.