KM v TL

Case [2016] NZHC 1327 17 June 2016

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PURSUANT TO S 125 DOMESTIC VIOLENCE ACT, REPORT MUST COMPLY WITH SS 11B TO 11D OF FAMILY COURTS ACT (PARTNER IS 'VULNERABLE PERSON')

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2015-485-972 [2016] NZHC 1327

BETWEEN
KM

Appellant

AND

TL
First Respondent

AND

TM

Second Respondent

Hearing: 26 May 2016

Counsel:

Appellant in Person (via AVL) No appearance for Respondents

Judgment:

17 June 2016

JUDGMENT OF BROWN J

Introduction

[1] This appeal is a further episode in what Judge G F Ellis described in the judgment under appeal1 as “the extraordinary history of the proceedings involving KM and TL”. The flavour of that history is captured in the observation of Dobson J:2

… There is a very protracted history of [KM’s] unsuccessful attempts to discharge the protection order [TL] has against her. The chronology is also peppered with convictions of [KM] for breaches of that protection order. That is the very antithesis of the context in which a Court might consider discharging a protection order as no longer being necessary. …

1 KM v TVL FC Hutt Valley FAM-2007-032-944, 31 August 2015.
2 KM v TL [2013] NZHC 2479 at [23].

[2] In his judgment dated 30 October 2015 Judge Ellis dismissed applications brought by the appellant:

(a) for leave to bring an application to discharge the final protection order made in April 2008; and

(b)for variation of that final protection order by the removal of TM as a protected person.

[3] The Judge also made a direction that, before KM may bring any further application in relation to the April 2008 protection order, whether for discharge, variation or otherwise, KM is required to obtain the leave of the Court.

[4] In this appeal the appellant challenges the Judge’s conclusion on each of

those three matters.

Background

[5] The circumstances relating to the making of the April 2008 protection order were explained by the Judge in this way:

[10] The applicant KM and the first respondent, TL, were in a domestic relationship for a brief period of years that ended in late 2006. In January 2007 TL applied without notice for a protection order against KM under the Domestic Violence Act 1995 (“DVA”). The original affidavit on which the protection order was made included evidence of domestic violence in the nature of psychological abuse, including damage to property and threats of violence against TL and any “new partner” of his.

[11] The protection order was made final in April 2008 in circumstances subsequently reviewed in the High Court. But the final order has nevertheless continued to stand. In 2010, following KM’s conviction for an assault against TL’s partner, TM, a direction was made by the Court adding TM as a protected person under the order. That direction also continues and TM is a protection person under the order.

[6] On 16 August 2011 Judge Ellis declined an application by KM to discharge the protection order. In that judgment he explained:

[30] … the crucial test is has the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading KM v TL

Details

AGLC: KM v TL [2016] NZHC 1327
Case: [2016] NZHC 1327
Decision Date: 17 June 2016

CaseChat Overview and Summary

KM appealed against a decision of Judge Ellis to dismiss her application for leave to apply to discharge a final protection order made against her in 2008 and an application to vary that order by removing TM as a protected person. Judge Ellis also made directions that before KM could bring any further application in relation to the order she was required to obtain leave of the court. KM argued that Judge Ellis had erred in making the directions. Brown J found that while the District Court and the Family Court have an inherent or implied power to dismiss a proceeding before the court that the Judge considers frivolous or vexatious or an abuse of the procedure of the Court, they do not have an inherent or implied power to make orders in respect of proceedings which are yet to be commenced. Brown J concluded that the appellant's appeal against the first and second directions was allowed and those two directions were quashed.

Orders