KM v TVL
[2013] NZHC 1156
•20 May 2013
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 Moss set down TVL’s application for hearing, allocating one hour. It
1 KM v TVL [2012] NZFC 571.
2 KM v TVL FC Lower Hutt FAM-2007-032-00944, 16 August 2011 at [31].
was to be heard on the basis that a formal response on behalf of TVL to the application would not be required until the application to strike out or dismiss KM’s application had been determined.
[5] Judge Moss heard TVL’s application and upheld it on 30 January 2012. Rule
194 of the Family Court Rules empowers the Court to stay or dismiss proceedings on any of the three grounds that apply under other Court rules for stay or dismissal, namely where there is no reasonable basis for the proceedings, or where they are frivolous or vexatious, or constitute an abuse of the Court’s process. As KM had done in previous Family Court proceedings, she acted for herself.3 Judge Moss ensured that KM understood the scope of matters in issue at the hearing, and traversed with KM the prospects for her application.
[6] Judge Moss was cognisant of KM’s then recent attempt to discharge TVL’s protection order against her, resulting in the judgment of Judge Ellis. In terms of the criteria for a dismissal of the proceedings, Judge Moss found that pursuit of the application was not an abuse of process, and was not vexatious. The Judge went on to analyse the possible bases for a protection order, ultimately deciding that there was no reasonable basis on which it could succeed. The Judge observed:4
Doing the best that I can to understand [KM’s] application it appears to me that she seeks a recognition, as a result of the effect of [TVL’s] behaviour, that she has been significantly diminished in her psychological functioning by his domestic violence and thus that a protection order is necessary.
[7] The fundamental problems perceived by Judge Moss were the length of time that had passed, given the termination of the domestic relationship in 2006. Secondly, notwithstanding the need under s 14(5) of the DV Act to consider KM’s view as the applicant, the subjective perception of the need for a protection order had to be tested on a realistic foundation. In essence, if the perception of the need for a protection order was unrealistic and not objectively identifiable, then the DV Act could not be invoked to restrain the respondent where it merely placated an irrational
concern on the part of the applicant for such an order.
3 She also pursued the present appeal on her own behalf, filing comprehensive points on appeal.
Mr Paino appeared for her, speaking to those submissions but not going beyond the matters raised in the points on appeal.
4 KM v TVL, above n 1, at [26].
[8] Whilst accepting that the relationship had been “very limiting for [KM]
personally and psychologically”, the Judge went on to observe:5
… In my view, there has been so much time gone by, in circumstances over years, through which [KM] has herself repeatedly breached the protection order without reprisal, retaliation or action by [TVL] direct, that if there were a reasonable basis for a fear of ongoing violence of a psychological nature, there would be some inkling of it.
[9] The application to dismiss KM’s application for a protection order was therefore granted on the basis that it had no reasonable prospects of success. In addition, the judgment imposed two pre-conditions for any future application brought by KM for a protection order against TVL. One was that there had to be a creditable account of domestic violence committed by TVL against KM that occurred after 1 January 2012, and secondly KM had to seek leave before the proceedings were instituted. In imposing this constraint, Judge Moss adopted a somewhat similar constraint imposed by Judge Ellis in his judgment dismissing KM’s application for discharge of the protection order granted in favour of TVL. In that decision, Judge Ellis directed that KM would be required to seek leave to make any further application to discharge the protection order made against her in favour of TVL. By applying for leave, KM would have to justify to the Court the bringing of a fresh application and be able to show evidence that there had been such a change of circumstances or such a further passage of time as to satisfy the Court that there
was a reasonable likelihood that the protection order might be discharged.6
[10] KM pursued an initial appeal from the Judge Moss’s decision, but then failed to prosecute it. It was struck out for want of prosecution in this Court.7 KM pursued an appeal from that order, which the Court of Appeal upheld, directing that it ought to be considered on its merits by this Court.8
[11] The essence of the appeal was that the Family Court Judge had wrongly
assessed the prospects of success for KM’s application for a protection order because she failed to appreciate that the passage of time does not lessen the relative
5 At [29].
6 KM v TVL, above n 2, at [40].
7 Order of Miller J, 12 March 2012.
8 M v L [2012] NZCA 448.
importance of physical or psychological abuse, and hence the threat of a repetition of it. Further, that the Judge analysed KM’s need for a protection order on an objective basis, failing to evaluate KM’s subjective perception of the need for protection from physical or psychological abuse as perceived by the applicant. Mr Paino argued that both points could not be resolved against KM without hearing the evidence in a defended hearing.
[12] On the relevance of the lapse in time since identified incidents or a pattern of domestic violence, the Judge had accepted KM’s argument that the passage of time does not matter:9
… she argues that the effect of the domestic violence is not diluted or expunged by the effluxion of time; its effect may continue to be present in perpetuity. That is correct in my view.
[13] However, it was argued for KM that inconsistently with recognition of that principle, the decision to dismiss KM’s application relied on a finding that the principal incidents of domestic violence were so long ago that their impact should be discounted. The passage cited at [8] above was criticised as showing an unjustified basis for the determination that there was no reasonable basis for KM’s application, as it assumed that the passage of time had indeed lessened the weight that could be given to previous instances of domestic violence.
[14] I consider that the two observations are reconcilable. As a matter of jurisdiction, an applicant for an order under s 14 of the DV Act has to establish that the respondent is using or has used domestic violence. At that threshold point, historical domestic violence may suffice, and depending on the circumstances in which it was inflicted and other features of the context of the relationship, violence that occurred sometime in the past in the relationship may well be sufficient.
[15] Once that jurisdictional threshold is reached, however, it would be quite artificial to assess the reasonableness of the subjective concerns raised by an applicant, without taking into account when the domestic violence suffered by the
applicant occurred. Taking an extreme example, an applicant who cited a single
9 KM v TVL, above n 1, at [11].
instance of domestic violence that had occurred 10 years previously as justification for an on-going fear of further violence would have the reasonableness of their subjective concerns measured differently from an applicant who cited an instance of equivalent violence occurring a month before an application was made.
[16] I am satisfied that the context in which Judge Moss had regard to the lapse in time since instances of domestic violence alleged against TVL (instanced by the reasoning cited in [8] above) was a legitimate component of the evaluation of the reasonableness of KM’s subjective perception of the need for an order.
[17] The second criticism was that Judge Moss did not assess the need for an order by taking into account KM’s subjective perception of the requirement for such an order. That subjective perception is a mandatory consideration because s 14(5) of the DV Act provides:
14 Power to make protection order
…
(5) Without limiting the matters that the Court may consider when determining whether to make a protection order, the Court must have regard to—
(a) 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; and
(b) The effect of that behaviour on the applicant, or a child of the applicant's family, or both.
[18] In Surrey v Surrey, the Court of Appeal’s analysis of the test of necessity included an observation that s 14(5)(a) appears to concentrate on the nature and seriousness of past violence but has been interpreted in the cases to include the victim’s subjective fears for the future, and the Court of Appeal considered that a reasonable interpretation.10 The Court continued:11
The fact that Parliament has mandated that the subjective views of an applicant (or a child of the applicant’s family) regarding past violence have to be taken into account suggests that the purpose of a protection order may not only be to ensure that those who have been subjected to domestic
10 Surrey v Surrey [2010] 2 NZLR 581 (CA) at [101].
11 At [102]–[103].
violence in the past are safe in the future from the risk of domestic violence, but also that they feel safe from domestic violence.
Under s 14(5)(b) of the DV Act, which is often overlooked, the effect of the past domestic violence on the applicant, or a child of the applicant’s family, or both, must also be taken into account. To a degree, the effect of the past domestic violence may be dependent on the applicant’s or any child’s subjective views of the nature and seriousness of the violence. The effect of past violence may also vary, depending on any particular vulnerability of the applicant or any child. This suggests that the characteristics of the particular victim will be a relevant consideration in the judicial inquiry.
[19] It is inevitable that the reasonableness of a subjective concern at the risk of future domestic violence be assessed, before the intrusive constraint of a protection order will be justified. Once an order is made, it creates the prospect of criminal proceedings for breach, and the Court’s intervention would not be warranted if, in doing so, it was pandering to an irrational or unjustified fear, however genuinely it was held in a subjective sense by the applicant.
[20] In the Court of Appeal’s review of earlier decisions, it accepted that the perception of an applicant as to the nature and seriousness of the behaviour directed towards the applicant is not an exclusive criterion.12 Judge Moss legitimately tested the reasonableness of KM’s perception of the need for an order in a manner that accords with the recognised requirement to do so before considering whether an order would be justified.
[21] Accordingly, I am not satisfied that the Judge erred in the grounds she relied on to decide that there was no reasonable basis for KM’s application.
[22] Mr Paino expanded these grounds of challenge by criticising Judge Moss for dismissing the prospects of more recent violent incidents that could add to the justification for her fear that a protection order was needed. He argued that KM’s evidence of the context in which certain altercations between KM and either TVL, or predominantly the partner or associates of TVL, should not have been dismissed as not providing relevant justification. However, that goes to an assessment by the
Judge of the potential weight of the evidence. It was open to the Judge to form a
12 At [111], commenting on Takiari v Colmer [1997] NZFLR 538 (HC), and at [115], commenting on A v B [Protection Order] [2008] NZFLR 65.
view about the weight that could possibly attach to such incidents at a contested hearing, and I am not persuaded that she erred in dealing with it in the way she did.
[23] The second aspect of KM’s appeal was to challenge the imposition of conditions on her, restricting the circumstances in which she might bring any subsequent application for a protection order. The terms of those constraints are described in [9] above.
[24] On behalf of KM, Mr Paino argued, first, that the Family Court did not have jurisdiction to prevent litigants making applications, and instead requiring them first to comply with pre-conditions. Secondly, that even if there was some source of power for the Family Court to do so, then it ought not to have been invoked in this case to impose conditions on further applications by KM. Mr Paino pointed out that it was the sort of constraint imposed on a vexatious litigant when Judge Moss had explicitly found that KM was not vexatious in bringing the application.
[25] In defending the imposition of conditions on which KM could bring any subsequent application, Mr Howell submitted that it was no more than the Court regulating its own procedure, and that the constraint was justified in light of what might become an obsessive attitude by KM towards the perceived unfair imbalance between her and her former partner when TVL has the advantage of a protection order, but she does not.
[26] I infer that Judge Moss was influenced in the conditions she imposed by the orders that Judge Ellis had made when dismissing KM’s application to discharge TVL’s protection order against her in August 2011. Judge Ellis was conscious of the limits on the Family Court’s powers to constrain the bringing of applications:13
The Superior Courts have previously made it very clear that this Court should not attempt to regulate its process in any way which unreasonably interferes with the right of any party to be heard by the Court, or to bring an application which they are entitled to make. But having said that, it is also clear that the law and the rules of this Court do give the Court a responsibility to so manage its processes as to facilitate the interests of justice in a way which is prompt, efficient, expeditious and economical for the parties, and in a case which involves the perception of domestic violence
13 KM v TVL, above n 2, at [40].
and of the need for protection then it is even more important that the Court should enable processes that will allow parties to be heard without making respondents feel that they are unfairly victimised.
[27] There is no express provision in the DV Act empowering the Family Court to constrain litigants from making repeated applications. The Family Court Rules do provide an express power for a judge presiding over a court to give any directions he or she thinks proper for regulating the court’s business.14 In D v H the High Court considered the power of a Family Court Judge to order that no further proceedings under the Guardianship Act 1968 were to be brought by the litigant in question for a period of two years.15 Within that time limit, leave to bring an application could be sought. In that decision, Robertson J observed:16
Any jurisdiction in the Family Court to make such an order must come from the inherent power of any Court to control its own processes and to safeguard them from abuse. It has been held in cases such as McMenamin v Attorney-General [1985] 2 NZLR 274 and Bryant v Collector of Customs [1984] 1 NZLR 280 that an inferior Court has this power. Richardson J in Moevao v Department of Labour [1980] 1 NZLR 464 at p 482 has said that the concern at the heart of the abuse of process principle was with “conduct on the part of a litigant in relation to the case which unchecked would strike at the public confidence in the Court's processes and so diminish the Court’s ability to fulfil its function as a Court of law”.
[28] In that case, the constraint had been ordered by the Family Court without argument or forewarning to the parties. It was quashed on appeal. The Court did not determine absolutely that the power could not be exercised as an aspect of the Court controlling its own processes to safeguard them from abuse, but required that the person against whom such an order was contemplated had to be given an opportunity to be heard, and the constraint would only be justified once the conduct of the person who was to be subject to the constraint could be characterised as an abuse of process.
[29] Mr Howell submitted that KM was on notice in this case that TVL treated her application for her own protection order as an abuse of process because it was, in a sense, a collateral attack on the numerous decisions in which she had been unsuccessful in getting a discharge of the protection order made in favour of TVL.
At the opening of the hearing before Judge Moss, counsel then appearing for TVL
14 Family Court Rules 2002 at 16.
15 D v H [2000] 2 NZLR 242 (HC).
16 At [17].
had argued that the scope of the constraint Judge Ellis had imposed ought to be treated as also applying to any application KM made for her own protection order so that she needed leave for the present application. Mr Howell also pointed to exchanges that KM had with Judge Moss on the reasonableness of the requirement that she provide evidence of a change in circumstances and seek leave, before making further applications for discharge of TVL’s protection order.
[30] I am not satisfied that those exchanges constitute the type of notice, and opportunity to be heard, that Robertson J contemplated as a precursor to the Family Court exercising a power to constrain further applications as an aspect of controlling its own processes and preventing abuse of process.
[31] Further, the other pre-condition cited in D v H, namely that the existing proceedings constituted an abuse of process, was rejected in this case. Judge Moss explicitly found that the application was not an abuse of process.
[32] An analogy might be drawn with other statutes in the family law area that do explicitly provide for vexatious proceedings. Section 163 of the Family Proceedings Act 1980 and s 207 of the Children, Young Persons and Their Families Act 1989, both give the Family Court power to dismiss proceedings on being satisfied that they are frivolous or vexatious or an abuse of the procedure of the Court. For an applicant who persistently institutes vexatious proceedings, those sections provide an additional power to constrain that applicant from commencing further proceedings. The relevant provisions in both those statutes expressly provide for the person whose conduct might be held against them as vexatious first being given an opportunity to be heard.
[33] This was the first application for a protection order in her favour that KM had pursued. As Mr Paino emphasised, an application for a protection order cannot be seen merely as the mirror image of an application to discharge a protection order made in favour of the other party to the domestic relationship. Because of the requirement to have regard to the applicant’s individual perception of the need for a protection order, distinctly different considerations apply, when contrasted with the
Court’s assessment of whether an existing protection order in favour of the other
party is no longer necessary.
[34] I am reluctant to rule on this ground of appeal in a way that fetters the power of the Family Court to regulate its own procedures so as to avoid an abuse of process. On a review of all the materials before Judge Moss, and a consideration of the whole of the transcript of the hearing on TVL’s application to dismiss, I am satisfied that the merits of the application were not only dealt with correctly on the law and the facts, but that the Judge dealt sensitively with the genuine concerns as KM perceived them to be.
[35] However, adopting the limit on the circumstances in which future applications might be constrained to those defined in D v H, it is clear that the requisite conditions did not exist. This first application for a protection order was not an abuse of process of the Court, KM’s conduct was explicitly characterised as not being vexatious, and I am not satisfied that she was afforded any adequate opportunity to consider and argue against the proposition that such a constraint was justified to avoid an abuse of process.
[36] Accordingly, the conditions imposed for any subsequent application were made without jurisdiction, and are quashed.
[37] I caution KM about treating this finding as any form of encouragement that a further application might now be successful. It would have been legitimate for Judge Moss to observe that the lack of any reasonable existing basis for making an order is most unlikely to be transformed into a tenable basis, without a more recent instance of domestic violence attributable to TVL since, say, the beginning of 2012. Proceeding with an application in the absence of such evidence would clearly risk the prospect of an adverse costs award, and afford grounds for challenge on the basis that it constituted an abuse of process.
Costs
[38] Each side has been partially successful and there is accordingly no order as to costs.
Dobson J
Solicitors:
Paino & Robinson, Upper Hutt for appellant
Thomas Dewar Sziranyi Letts, Lower Hutt for respondent