KFW v KBW

[2019] NZHC 2621

NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILD(REN).

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV 2019-419-184

[2019] NZHC 2621

BETWEEN

KFW

Appellant

AND

KBW

Respondent

Hearing:	15 October 2019
Appearances:	D M O’Neill and M L O’Neill for the appellant R B Gubb and TJT Kopua for the respondent
Date of judgment:	15 October 2019

ORAL JUDGMENT OF JAGOSE J

Solicitors/Counsel:

David O’Neill Barrister, Hamilton Riverside Law, Hamilton

KFW v KBW [2019] NZHC 2621 [15 October 2019]

[1]        KFW appeals against the decision of Judge S T Otene in the Family Court at Hamilton on 13 June 2019, refusing a final protection order against the respondent,

KBW. 1

[2]        Judge Otene heard the application on 16 May 2019 in the Family Court at Hamilton. On 13 June 2019, the Judge also refused a direction KBW attend a non- violence programme. The temporary protection order in favour of KFW, issued on 14 January 2019, was discharged.

Background

[3]        KBW and KFW married in 2003. They have two children together, aged seven and five, who are in KFW’s care but have supervised contact with KBW. KFW and KBW separated in October 2018. Their relationship was marked by exceptional stressors, including KFW’s self-inflicted shotgun injury to her head and subsequent rehabilitation, an

[4]        d her care for KBW’s elderly mother, suffering from dementia (now deceased, but then living in a cottage on their property), as well as those more ordinary stresses arising from bringing up a family and running their business.

[5]        According to KFW, KBW first used domestic violence against her in 2006. She says he verbally abused her (by shouting and swearing at her) and threatened her. There are recorded family violence incidents between the two. In 2015, police were called to the address after KFW said she had been pushed against a cupboard by KBW and dropped to the floor. Police found no evidence of physical injury. In 2018, police were again called to the address when KFW stated KBW had strangled her, lifting her off the couch while holding her around the neck, before throwing her down. The police record commented there was no physical evidence to prove an assault, and a PSO was issued as there was insufficient evidence to arrest KBW. KBW strongly denies all

1      KFW v KBW [2019] NZFC 4129.

allegations of physical abuse, and says it is KFW who has been physically abusive toward him.

[6]        KBW and KFW lived on the same property, albeit in different houses some 40 metres apart, for a short while after their separation. KFW says KBW continued to assert control over her, the example given of him parking his car across the driveway to prevent her going to a ‘parenting through separation’ course. She says the verbal abuse continued, including in front of the children. She has since relocated to Hamilton, with KBW remaining in Raglan, some 45 kilometres away.

Family Court decision

[7]        The Judge began by outlining the criteria which must be satisfied before a protection order is made:2

(a)the parties have been in a domestic relationship;3

(b)KBW must have used, or be using, domestic violence against KFW and/or the children;4 and

(c)an order must be necessary for the protection of KFW and/or the children.5

[8]        A domestic relationship clearly was established. The Judge also found KBW has used domestic violence against KFW in the past, both physical and psychological. The Judge considered KFW’s credibility somewhat affected by her extensive alcohol consumption during the period the domestic abuse was said to have occurred. But the Judge ultimately was satisfied there was both physical and psychological abuse on the part of KBW against KFW, although not of the extent or frequency alleged by KFW. KBW’s contention the children had never witnessed the violence was rejected; “the abuse happened in the home with the children in close vicinity”.6 Consequently, the Judge found KBW psychologically abused the two children.

2 At [3].

3      Domestic Violence Act 1995, s 7(1).

4      Section 14(1)(a).

5      Section 14(1)(b).

6      KFW v KBW, above n 1, at [23].

[9]        The Judge was not satisfied a protection order was necessary for the protection of KFW and/or her children. She acknowledged KFW is “very fearful” of KBW and “has for many years lived in a relationship which has caused her great distress”.7 Factored into this assessment was KFW’s head injury in 2014, which has had detrimental psychological effect. On balance, the Judge considered KFW’s fear of KBW to be reasonably held.

[10]      Despite this, the Judge identified three ‘counterbalancing’ factors indicating a protection order was not necessary for either KFW’s or the children’s protection:

(a)KBW had been in a new relationship for the previous six months (lending weight to his assertion he considered his relationship with KFW to be at an end);

(b)KBW and KFW lived in adjacent properties for four months with only one alleged instance of verbal abuse occurring. Otherwise, it is said they “interacted reasonably co-operatively about the children and related domestic arrangements”.8 There was no protection order in place at the time, which the Judge considered “undermined [KFW’s] assertion that she needs the order to keep [KBW] at bay”;9 and

(c)KBW did not breach the temporary protection orders. His explanation for telephone calls made to KFW was accepted. The Judge commented “[t]he type of fixated, retributive or entitled attitude and behaviour that [KFW] fears would prompt a resumption of abuse if an order was not in place” was not apparent.10

Relevant law

[11]      The Domestic Violence Act 1995 was repealed on 1 July 2019 by the Family Violence Act 2018.11 However, this proceeding was commenced while the 1995 Act was still in force.

7 At [27].

8      At [28(b)].

9      At [28(b)].

10     At [28(c)].

11     Family Violence Act 2018, s 258.

[12]      In exercising any power under the Act, the Court must be guided by the Act’s object: to reduce and prevent violence in domestic relationships, by recognising domestic violence in all its forms is unacceptable behaviour; and ensuring, where domestic violence occurs, there is effective legal protection for its victims.12

[13]      Domestic violence is defined as violence against a person by any other person with whom that person is, or has been, in a domestic relationship.13 It includes physical, sexual and psychological abuse.14 A single act may amount to abuse.15 Psychological abuse of a child includes where a person allows the child to see or hear the abuse of a person with whom the child has a domestic relationship.16

[14]      Section 14 empowers the making of final protection orders and provides a test to apply in doing so. The test in s 14(1) is two-pronged:17

(a)under s 14(1)(a), the court must first be satisfied the subject of the application is using, or has used, domestic violence against the applicant, or a child of the applicant’s family, or both; and

(b)under s 14(1)(b), the court must be satisfied the order is necessary for the protection of the applicant, or a child of the applicant’s family, or both. This requires an assessment of the need for protection in the future, having regard to the objects of the Domestic Violence Act, and the statutory factors set out in s 14, as well as any others relevant.

Without limiting its consideration of the order’s necessity, the court is bound to consider if there is a pattern of behaviour in respect of which the applicant, or a child of the applicant’s family, or both, need protection – even if the behaviour in respect of which the application is made appears to be minor or trivial when viewed in isolation, or unlikely to recur.18

12     Domestic Violence Act 1995, s 5(3).

13     Section 3(1).

14     Section 3(2).

15     Section 3(4).

16     Section 3(3).

17     Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581.

18     Domestic Violence Act 1995, s 14(3).

[15]      Last, the court must have regard to 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.19 This has been interpreted in cases to include the victim’s subjective fears for the future.

Approach on appeal

[16]      KFW’s counsel, David O’Neill, says the issue of necessity at the second stage of the s 14(1) enquiry is a discretionary decision, not subject to ordinary appellate principle.20 Until relatively recently, applicable principles on appeal differed in the two stages of the enquiry.21 But the Court of Appeal held in SN v MN the Surrey approach did not survive the decision in Kacem v Bashir.22 Accordingly, both limbs of the test are reviewable on ordinary appellate principle.23 KFW bears the onus of satisfying me I should differ from the decision under appeal.24 I am justified in interfering with it only if I consider it wrong, but must make my own assessment of the merits of the case.25

Analysis

[17]      No issue can be taken with the Judge’s determination KBW and KFW were in a domestic relationship. They were married for some time.

[18]      The Judge found KBW had used domestic violence against KFW in the past, and by virtue of the children’s exposure to that violence, they too had experienced psychological abuse. I agree. While KFW’s credibility may have been affected by the extent of her alcohol consumption, the effect of that consumption appears confined to her ability to remember the extent of the domestic violence experienced, rather than whether it occurred at all. I need only to be satisfied domestic violence was used

19     Section 14(5); Surrey v Surrey, above n 17.

20     Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

21     Surrey v Surrey, above n 17, at [67]–[73].

22     SN v MN [2017] NZCA 289, [2017] 3 NZLR 448 at [46], referring to Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [33]–[35].

23     See H v W [2019] NZHC 616.

24     Austin, Nichols & Co Inc v Stichting Lodestar, above n 20, at [4].

25     At [4] and [5].

against the applicant, whether that be physical or psychological abuse (and neither term requires embellishment).26

[19]      KBW and KFW level allegations at each other. The recorded family violence incidents offer little clarity, as no physical evidence of the alleged assaults was found. But I agree with the Judge’s finding domestic violence was used by KBW against KFW. While she admits to slapping him twice and ‘kneeing him’, KBW admits to being verbally abusive towards KFW on multiple occasions.27 In cross-examination, he admitted to directing foul language at KFW and calling her a “retard”, while knowing it was not appropriate.28 When spoken to by police following a family harm callout, KBW admitted to pushing KFW, after she slapped him. While he says the children were never privy to these interactions, evidence suggests they were.29

[20]      The primary focus on appeal is whether a protection order is necessary to protect KFW and/or the two children. Mr O’Neill says the Judge erred by failing to adequately recognise, once satisfied KFW held a subjective reasonable fear of future violence, the onus shifted to KBW to demonstrate why an order should not be granted. Mr O’Neill also says the three countervailing factors identified by the Judge were insufficient “to override the need for an order”, not being based on the evidence before the court.

[21]      Various factors can be considered when deciding “whether the evidence displaces the apparent need to grant a protection order” but ultimately once the applicant has shown a reasonable subjective fear of future violence, those factors “may do no more than guide the Court in any given situation”.30 Once an applicant has proven the existence of past violence, and reasonable subjective fear of future violence, an evidential burden passes to the respondent to raise countervailing factors weighing against the need to grant a protection order.31 The Judge had express regard

26     SN v MN, above n 22, at [20].

27     Notes of Evidence, p 63.

28     Page 63–64.

29 Both children were at the address at the time of the recorded family harm incidents (on one  occasion it is recorded the children were asleep). KBW’s affidavit deposes he heard one of the children wake when he and KFW were arguing.

30 SN v MN, above n 22, at [24(e)].

31 Surrey v Surrey, above n 17, at [43].

for this ‘evidential shift’ when discussing law relevant to the necessity limb.32 But she made no further reference to KBW’s discharge of the burden.

[22]      The three ‘counterbalancing’ factors identified by the Judge are attributable to KBW. In assessing the weight to be given to those countervailing factors, the inquiry into necessity must still remain a broad one – it need not be formulaic or overly refined.33

[23]      The Judge believed KBW’s six-month relationship with someone else gave weight to his assertion he considers his relationship with KFW to be at an end.      Mr O’Neill says there was no evidence adduced to establish the existence of the relationship, and the relationship is irrelevant to the historical issues existing between the parties. KFW in cross-examination acknowledged she knew KBW had entered a new relationship.34 No other evidence as to the relationship was adduced.

[24]      Separation may increase or dissipate a threat of violence.35 This illustrates factors relevant in determining some cases should not formulaically be applied in others.36 In combination with other factors, a new relationship of meaningful duration may show the respondent is distanced from the applicant, reducing the risk of future violence. But a new relationship alone is not enough to show a protection order is not necessary for the safety of the applicant.

[25]      The Judge also considered the ‘co-operative interactions’ KBW and KFW had while living next door to each other. Mr O’Neill says there is insufficient evidence to support those interactions, and emotional and verbal abuse of KFW continued. The car across the driveway incident is otherwise unsubstantiated, and KBW denies it occurred. Again, it is difficult to assess the true position from the mixed affidavit evidence. It seems KBW and KFW frequently interacted while living in close proximity, co-parenting their children and working on their business together.

32     KFW v KBW, above n 1, at [26].

33     SN v MN, above n 22, at [46].

34     Notes of Evidence, p 36.

35     Surrey v Surrey, above n 17, at [122].

36     SN v MN, above n 22, at [24(e)].

[26]      The third factor the Judge held weighed against the need for a protection order was KBW’s full compliance with the temporary protection order. Mr O’Neill points to an alleged breach, relating to KBW possessing firearms (having earlier had his licence revoked), but that has not been substantiated and KFW in cross-examination said there had been no breach of the protection order so far as she was aware.37 KFW has since moved to Hamilton, while KBW remains in Raglan. KBW has not made any attempts to visit her, although KFW attributes this to the temporary protection order. KFW says she is “happy with [her] newfound safety”. In SN v MN, the Court of Appeal found an absence of temporary protection order breaches irrelevant, as “that fact may well show the success of the temporary order rather than the independent reformation of the violent party”.38

[27]      I accept the first two factors identified by the Judge are countervailing factors. But while relevant, they are only a guide. The mandatory considerations must be assessed. In my view, the available evidence shows a pattern of abusive behaviour on the part of KBW during the course of his and KFW’s relationship. That pattern of violence must be considered even where some or all of the behaviour appears unlikely to recur.39 KBW and KFW’s relationship appears turbulent, with each party admitting physical violence with the other. KBW had not contacted KFW since she relocated,40 but I keep in mind the temporary protection order has been in place.

[28]       I must consider KFW’s perception of KBW’s behaviour. She is fearful of KBW, and I agree with the Judge’s comments KFW has “for many years lived in a relationship which has caused her great distress, which she has at times managed by excessive alcohol consumption”.41 KFW is significantly vulnerable, and KBW’s behaviour has had an impact on her. At the same time, the applicant’s subjective perception is only one relevant factor to consider (albeit a relatively fundamental one).42 Reliance on past behaviour is the most reliable guide to future conduct.43 It can

37     Notes of Evidence, p 36.

38     SN v MN, above n 22, at [42(a)].

39     Domestic Violence Act 1995, s 14(3).

40     I agree with the Judge’s finding calls made to KFW from KBW’s phone adequately were explained.

41     KFW v KBW, above n 1, at [27].

42     K v G [Protection order] [2009] NZFLR 253 (HC) at [38].

43     SN v MN, above n 22, at [24(a)].

be reasonable to have fears for the future solely on the basis of past behaviour, depending on the nature and seriousness of that past behaviour.44 KBW has been both verbally and physically abusive to KFW in the past.

[29]      His conduct, while entirely inappropriate, appears confined to the course of the parties’ relationship. His past conduct is not of a nature which suggests he is likely to seek KFW out, as part of some vindictive design. Their separation appears to have dissipated the threat of violence. There are no ongoing threats. But I am conscious, at least through ongoing contact with the children, KBW maintains some form of relationship with KFW. And the protection order also is sought for the children’s benefit, who have experienced the domestic violence between their parents. The pattern of KBW’s behaviour thus is not interrupted by the ending of the parties’ domestic relationship. I also am troubled by his resistance to attendance at a stopping violence programme. That suggests he lacks empathy for or insight into KFW’s reasonably-held fears.

[30]      While it is finely balanced, in my view the Judge erred in determining that a protection order is not necessary for the protection of either KFW or the children.

Result

[31]      The appeal is upheld. I accordingly make the sought protection order, for the benefit of KFW and the children.

—Jagose J

Postscript – costs

[32]      After delivery of my judgment, Mr O’Neill advised costs were sought. In my preliminary view, as the successful party, KFW is entitled to 2B costs and disbursements.45 That is because, from what I presently know of it, nothing in the steps

44     Surrey v Surrey, above n 17, at [119].

45     High Court Rules 2016, rr 14.2(1)(a), (c) and (g).

taken by her in this averagely complex proceeding required other than a normal amount of time.46 If that is not accepted by the parties, and they cannot otherwise agree, costs are reserved for determination on short memoranda of no more than five pages – annexing a single-page table setting out any contended allowable steps, time allocation, and daily recovery rate – to be filed and served by KFW within ten working days of the date of this judgment, with any response and reply to be filed within five working day intervals after service.

—Jagose J

46     Rules 14.3(1) and 14.5(2).