KM v TVL - [2013] NZHC 1156

NOTE: PURSUANT TO SECTION 125 OF THE DOMESTIC VIOLENCE ACT 1995, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SECTIONS 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-2012-485-303

CIV-2012-485-304 [2013] NZHC 1156

UNDER the Domestic Violence Act 1995, section 91, the Judicature Act 1908, Schedule 2 and High Court Rules, Part 20
Appeals

IN THE MATTER OF an appeal of a decision by Judge Moss, decided on 30 January 2012 in the Family Court at Lower Hutt (FAM-2007-032-
00944)

BETWEEN KM Appellant

ANDTVL Respondent

Hearing: 19 April 2013

Counsel: P V Paino for appellant
J W Howell for respondent

Judgment: 20 May 2013

RESERVED JUDGMENT OF DOBSON J

KM v TVL HC WN CIV-2012-485-303 [20 May 2013]

[1] This proceeding was an appeal from a decision of Judge J F Moss in the Family Court at Lower Hutt delivered on 30 January 2012 striking out KM’s application for a protection order under the Domestic Violence Act 1995 (the DV Act).1

[2] The parties had been in a domestic relationship for a period of years up to

2006. During that relationship, and since it ended, dealings between the parties have been marked by incidents of physical violence and claimed psychological abuse. In
2007, TVL obtained a protection order under the DV Act against KM. By the middle of 2010, KM had amassed eight convictions for breach of that protection order. KM has, on more than one occasion, been sentenced to terms of imprisonment for breaches of the protection order and associated convictions for violence.

[3] In August 2011, KM argued for discharge of the protection order made against her in TVL’s favour. In a judgment expressing an understanding for KM’s concerns at the inequality of TVL being insulated by a protection order, but she being vulnerable to the adverse consequences of confrontations between them, Judge G F Ellis nonetheless found that it was not yet appropriate at that time to discharge the order against KM.2 His judgment implicitly recognised the adverse impact on KM of her subjective impression that consideration of the effects of on-going contact between her and TVL, and associates of his, were all being
assessed from TVL’s perspective when he had a protection order against her. As well as a concern that the existence of that protection order meant the dealings between the two were vulnerable to assessment from an unbalanced perspective, KM also raised concerns that she had need for protection from TVL and his associates.

[4] In September 2011, KM filed her own application for a protection order. Initially that was done on a without notice basis but she was directed to serve it on TVL. In late September 2011, TVL applied for stay or dismissal of the protection order application under r 194 of the Family Court Rules 2002. That application was accompanied by a separate one for strike out of the proceedings. On 29 September
2011, Judge…

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 TVL

Details

AGLC: KM v TVL [2013] NZHC 1156
Case: [2013] NZHC 1156
Decision Date: 20 May 2013

CaseChat Overview and Summary

KM v TVL is an appeal from a decision of Judge Moss in the Family Court at Lower Hutt, delivered on 30 January 2012, which struck out KM’s application for a protection order under the Domestic Violence Act 1995 (the DV Act). The appeal focused on the correctness of Judge Moss’s assessment of the prospects of success for KM’s application, and the appropriateness of conditions imposed on any future applications by KM for a protection order against TVL. KM, who had been in a domestic relationship with TVL until 2006, had accumulated eight convictions for breaching a protection order granted in favour of TVL. She had argued for the discharge of that order, but the application was dismissed by Judge Ellis. KM subsequently applied for her own protection order against TVL. TVL applied for the dismissal of KM’s application, which Judge Moss granted, finding that it had no reasonable prospects of success. The Judge also imposed conditions on any future applications by KM for a protection order.

The appeal raised two main issues. The first was whether Judge Moss erred in finding that there was no reasonable basis for KM’s application, given that the passage of time does not lessen the impact of domestic violence and that the subjective perception of the need for a protection order should be considered. The second was whether the conditions imposed on KM’s future applications were justified as a means of preventing an abuse of process. The Court held that Judge Moss did not err in finding that there was no reasonable basis for KM’s application, as it was legitimate to consider the timing of the incidents of domestic violence in evaluating the reasonableness of her subjective concerns. The Court also held that the conditions imposed on KM’s future applications were made without jurisdiction, as she was not given an adequate opportunity to be heard and the conditions did not meet the requirements set out in D v H. The Court quashed the conditions and cautioned KM that a further application would likely be unsuccessful without more recent evidence of domestic violence. Each side was partially successful, and there was no order as to costs.

Orders