KM v TL - [2013] NZHC 2479

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-000609 [2013] NZHC 2479

BETWEEN
KM

Appellant

AND

TL

Respondent

Hearing:	19 September 2013
Appearances:	Appellant in person (by AVL) J W Howell for respondent
Judgment:	24 September 2013

RESERVED JUDGMENT OF DOBSON J

Background

[1] The appellant (Ms M) and the respondent (Mr L) were for some years in a domestic relationship that ended in 2006. In January 2007, Mr L applied, without notice, for a protection order against Ms M, pursuant to the Domestic Violence Act 1995. An interim order was granted on an ex parte basis. Subsequently, in April 2008, that order was made permanent after a defended hearing. More recently, the protection order has been extended to Mr L’s current partner.

[2] Ms M has pursued an extensive range of initiatives to have the protection order varied or discharged. Those endeavours reached a point where, in August 2011, Judge G F Ellis in the Family Court at Lower Hutt imposed a constraint on

KM v TL [2013] NZHC 2479 [24 September 2013]

Ms M making any further application to discharge the protection order. She was required first to seek leave.

[3] On 30 August 2012, Ms M made such an application for leave. That application was declined in a judgment of Judge J Johnston on 18 February 2013, after a hearing that day.[1] In addition to dismissing the application, the Judge added to the conditions that had been imposed by Judge Ellis constraining any further applications by Ms M, ordering that no further application for leave to vary or discharge the protection order was to be brought before 18 February 2015. Ms M now appeals from that decision.

[1] KM v TVL [2013] NZFC 1241.

[4] Between lodging the application for leave in August 2012, and its determination in February 2013, there were two developments, the relevance of which is disputed by Ms M.

[5] First, on the evening of 2/3 December 2012, Ms M went to Mr L’s residential address, smashed a number of windows and entered the address. That resulted in criminal charges including two counts of breaching the protection order, and aggravated burglary. Those charges remained unresolved on 18 February 2013.

[6] Secondly, Ms M pursued an application for a restraining order under the Harassment Act 1997 in relation to persons now linked with Mr L and his current partner, but against whom jurisdiction would not exist under the Domestic Violence Act.

[7] On 10 December 2012, Judge W K Hastings delivered a decision dismissing Ms M’s applications for restraining orders. Judge Hastings made findings as to the lack of merit in Ms M’s claims that she had been harassed by associates of Mr L.

[8] Ms M has been in custody since 3 December 2012. She advised me during the hearing that the criminal charges arising out of…

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 [2013] NZHC 2479
Case: [2013] NZHC 2479
Decision Date: 24 September 2013

CaseChat Overview and Summary

The High Court of New Zealand, Wellington Registry, heard an appeal by KM against a decision of the Family Court that dismissed her application for leave to bring a further application to discharge a protection order made in favour of TL. The appellant and respondent had been in a domestic relationship that ended in 2006, and a protection order was made in favour of the respondent in 2007. The appellant had made numerous unsuccessful applications to discharge or vary the protection order, leading to constraints being imposed on her ability to make further applications. In August 2012, the appellant applied for leave to bring a further application to discharge the protection order, which was dismissed in February 2013. The appellant now appeals against that decision, and the additional condition that she cannot make a further application of that type before February 2015.

The central legal issue in the case was whether the Family Court erred in dismissing the appellant's application for leave to bring a further application to discharge the protection order, and in imposing the additional condition that she cannot make a further application of that type before February 2015. The court held that the Family Court did not err in dismissing the application for leave, as the appellant had not demonstrated a change in circumstances that would affect the previous necessity for the order. The court also held that the Family Court was entitled to impose the additional condition, as the appellant's protracted history of unsuccessful attempts to discharge the protection order constituted an abuse of process.

The court dismissed the appellant's appeal against the dismissal of her application for leave to bring a further application to discharge the protection order, and her challenge to the imposition of the additional condition. The court did not encourage an application for costs against the appellant.

This case highlights the importance of considering the context in which a litigant is making an application, and the need for the Family Court to balance the interests of both parties in protection order proceedings. The court's decision also underscores the seriousness of breaching a protection order, and the potential consequences for a litigant who persists in making unsuccessful applications to discharge or vary such an order.

Orders