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 the early December 2012 incident at Mr L’s property have been resolved, resulting in convictions against her for intentional damage, for which she has been sentenced to two years and one month’s

imprisonment, and convictions for breaches of the protection order, for which received a concurrent sentence of 18 months’ imprisonment.

[9] Ms M’s opposed application for leave to bring a further application to vary or discharge the protection order was called on 7 February 2013 before Judge J F Moss, who was the List Judge in the Lower Hutt Family Court that day. Because the outcomes of her previous hearings before Judge Moss were perceived by Ms M as potentially being tainted by bias, she absented herself from the judicial conference on 7 February. In her absence, Judge Moss allocated a hearing for the application on 18 February 2013.

[10]  On 7 February 2013, Ms M was served with a memorandum filed on behalf of Mr L setting out grounds for Mr L’s opposition to her application for leave and notifying that counsel for Mr L would apply for Ms M to be banned from making any applications to discharge the protection order for a specified period of time.

[11] After hearing the parties on 18 February 2013, Judge Johnston dismissed the application for leave. Her judgment suggested that it was perhaps surprising that Ms M  had  not  withdrawn  her  application  to  seek  leave  after  the  events  of 2 December 2012.[2] The Judge stated that she was sure, on reflection, Ms M could see that the application was “without merit”, and that “that puts Mr L to further stress and expense”.

The present appeal

[2] At [19].

[12] A person applying to discharge a protection order made against them needs to show a change in circumstances that affects the previous necessity for the order. Here, the Judge dismissed the prospect of there being any arguable case for the Court to determine on that basic issue.[3] Ms M argued that that finding was wrong because the Judge (as have other Judges in previous considerations of the necessity for a protection order in favour of Mr L) failed to appreciate that she was being subjected to psychological abuse from Mr L, and that he has not discouraged associates from pursuing physical confrontations with her.

[3] At [15].

[13] That does not provide a credible basis for an appeal.  As  Mr Howell submitted, all of the contacts between Ms M and Mr L that have been brought to the Courts’ attention were initiated by Ms M. There is one exception where Mr L and his current partner inadvertently had contact with Ms M when they all sought to use the same taxi. There is now a long history of Ms M being convicted for breaching the protection order by virtue of her initiating phone or physical contact with Mr L.

[14]  One component of Ms M’s criticism of Judge Johnston’s factual analysis was the Judge’s reliance on the findings made by Judge Hastings in the Harassment Act proceedings. Ms M submitted that the legal context in which her application had been made in those proceedings was distinct from the considerations that apply to proceedings under the Domestic Violence Act. However, that distinction does not render factual findings about the course of conduct between personalities involved any less relevant, where those dealings relate to the on-going need for a protection order for Mr L. As Mr Howell submitted, the determinations the Judge made about the circumstances of contact in that case are findings that could not be revisited, to the extent that they are relevant to the on-going necessity for a protection order in Mr L’s favour. I am satisfied there was no error by Judge Johnston in having regard to those findings.

[15] Ms M also appealed against the further condition imposed by Judge Johnston, which bans her from making any further application for leave to discharge or vary the protection order for a period of two years, namely until 18 February 2015.

[16] Ms M complained that she had inadequate notice of the prospect of such a condition being imposed, and that it could only be made on a formal application to vary the conditions of the protection order under s 27 of the Domestic Violence Act. Ms M had notice of Mr L’s intention to seek such a ban for a period by virtue of the memorandum on behalf of Mr L served on her on 7 February 2013. Her complaint that she had to be advised of the length of the ban being sought, and the legislative basis on which it was sought, cannot avail her. She was already subject to constraints, and the period for any ban was a matter of detail, not principle.

[17] In terms of the procedure adopted by the Family Court, it was open to it to deal with the matter by way of an oral application, if the content of the 7 February memorandum was inadequate. Subject to affording Ms M an opportunity to argue against such a condition, the Court could have imposed this additional condition on its own motion. Ms M was afforded an opportunity to be heard at the 18 February hearing on the necessity and appropriateness of the new condition. Ms M’s submissions record that she argued against any ban, and that the argument ended with an unresolved difference between the parties and the Judge as to the appropriate length of any ban.

[18] Ms M also argued that the Family Court should be required to deal with these matters consistently, and that the new condition imposed is inconsistent with the outcome of an appeal I determined in separate Family Court proceedings.[4] In that case, Ms M had applied for a protection order against Mr L in September 2011 and Mr L applied to have it struck out under r 194 of the Family Court Rules 2002.

[4] KM v TVL [2013] NZHC 1156.

[19] Mr L’s strike out application was heard by Judge Moss on 30 January 2012. Her Honour upheld the application, striking out Ms M’s application for a protection order against Mr L.[5] On that occasion, Judge Moss had regard to the form of constraints that Judge Ellis had imposed on further initiatives Ms M might take to seek the discharge or variation of the protection order made against her, and in favour of Mr L. Reflecting the concerns that had justified those constraints, Judge Moss imposed a condition that Ms M could not make any further application for a protection order against Mr L, without first obtaining the leave of the Family Court.

[5] KM v TVL [2012] NZFC 571.

[20]   Following the hearing of Ms M’s appeal in this Court, I upheld the decision to strike out her application, but accepted Ms M’s challenge to the condition limiting any further initiatives she might pursue to obtain a protection order against Mr L.

[21]   On that aspect of the earlier appeal, I adopted the approach of the High Court in D v H.[6] That appeal considered the scope of powers for the Family Court to constrain further initiatives by a litigant in Family Court proceedings.  Relevantly,

such constraints may be imposed where the proceedings by the litigant constitute an abuse of process.[7] On Ms M’s first application for a protection order, Judge Moss explicitly found that the application was not an abuse of process. On that basis, I found that the Family Court did not have jurisdiction to impose the constraint it had.

[6] D v H [2000] 2 NZLR 242 (HC).

[7] At [9].

[22] As I endeavoured to explain to Ms M at the hearing of her present appeal, the reasoning in my earlier decision accepted the proposition advanced on her behalf by Mr Paino (who appeared as counsel for her in the earlier appeal) that the Court had to consider the two sets of proceedings for protection orders quite separately.

[23] Accordingly, her plea for consistency as between the outcome of that appeal and the present one is inappropriate. There is a very protracted history of her unsuccessful attempts to discharge the protection order Mr L has against her. The chronology is also peppered with convictions of Ms M 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. In contrast, in the earlier appeal I determined, Ms M had only pursued a single application for her own protection order against Mr L.

[24] I am satisfied that in the different context that applied here, it was open to Judge Johnston to treat that protracted history as constituting a form of abuse of the Court’s process, thereby triggering the Court’s jurisdiction to impose constraints on further applications of the same type by Ms M.

[25] Barring a litigant access to the courts is a relatively drastic step. The further condition imposed transformed what was a limited right to seek access into a complete ban on resort to the Court. It is not a step to be taken lightly, but numerous Family Court Judges have grappled with Ms M’s obsessive opposition to the existence of a protection order, which the record shows continues to be justified. Most recently, Ms M has been sentenced to 18 months’ imprisonment for breaching the protection order, with the relevant offending occurring between the making of her application for leave, and it being dismissed. Each unsuccessful initiative by Ms M would have caused stress and expense to Mr L.  A balancing of interests is

involved, and I am satisfied that there was no error in the approach adopted by the Family Court Judge.

Result

[26]   Accordingly, Ms M’s appeal against the dismissal of her application for leave to bring an application to discharge the protection order is dismissed. Her challenge to the  imposition of  the additional condition that she is not to bring a further application of that type prior to 18 February 2015 is also dismissed.

Costs

[27]     Mr L would be entitled to costs on his successful opposition to the appeal. However, I do not encourage an application for such an order.

Dobson J

Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt for respondent

Copy to:
The appellant