PK v MN

[2022] NZHC 3488

NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,

PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing- judgments/

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV 2022-441-19

[2022] NZHC 3488

BETWEEN

PK

Appellant

AND

MN

Respondent

Hearing:

6 October 2022

Counsel:

B Castelino for Appellant

M J Casey and S-J G D Fisher for Respondent

Judgment:

16 December 2022

JUDGMENT OF MALLON J

Introduction

[1]                 PK appeals the decision of Judge J J Blake in the Family Court declining to grant her a protection order against MN under the Family Violence Act 2018.1 The essence of her appeal is that the Judge erred by:

(a)not permitting her to have a support person at the hearing;

1      [PK] v [MN] [2022] NZFC 1288 (per Judge J J Blake).

PK v MN [2022] NZHC 3488 [16 December 2022]

(b)making credibility findings without taking into account that she was a sexual abuse survivor and vulnerable due to the treatment of transgender persons in her and MN’s culture;

(c)finding that there was no reasonable risk of further family violence by failing to take into account PK’s immigration status; and

(d)otherwise erred by relying on MN’s evidence in finding that there was no reasonable risk of further family violence and by finding PK’s subjective fear of future violence was not reasonable.

Factual background

[2]                 PK is transgender and prefers the use of feminine pronouns. She met MN on Facebook in 2018. She said they were in a relationship where MN referred to her as his “wife”. She said the relationship ended in April 2020. MN said they were friends with sexual benefits and this relationship ended in January 2020. It is accepted that they lived at separate addresses.

[3]                 MN said that PK became obsessive when the relationship ended. He said she would send thousands of messages saying things like “just be my friend”, “I want to talk to you” and she would also send nude pictures of herself. He told her to stop messaging him. He would block her number and she would then immediately start messaging him from another number.  He referred to an incident in the morning of   8 April 2020. He and a girlfriend were sleeping in bed. He heard someone’s footsteps and someone open and close his door. He saw PK walking out of this house and running on his driveway. MN had a trespass order in place against PK at the time.

[4]                 MN filed a without notice application for a protection order against PK on   17 April 2020 (MN’s application). A temporary protection order was granted that same day and was served on PK on 20 April 2020 at the Napier Police Station. PK was required to attend a non-violence programme and was prohibited from going within 400 metres of MN’s address.

[5]                 On 19 May 2020 PK filed an objection to attend the prescribed programme. She said that she did not need to attend and intended to oppose the making of the final protection order. Being filed outside the required 10-day period, without satisfactory explanation for the delay, this objection was rejected.

[6]                 PK continued to contact MN. This resulted in criminal charges for six breaches of a temporary protection order between April and July 2020. PK was also charged with trespass. She was granted electronically-monitored (EM) bail on 15 February 2022. Her bail conditions were that she was to reside at an address in Auckland, she was not to associate or have contact directly or indirectly with MN and she was not to enter the Hawke’s Bay region except to attend court with her lawyer.

[7]                 On 6 July 2020 PK filed a notice of intention to appear and affidavit in relation to MN’s application. She denied MN’s allegations about her and alleged incidents of family violence by MN against her. She said she would like a protection order in her favour “to stop the Applicant from approaching [her] when [she was] away from [her] home” and that “[t]he Applicant has physically and sexually assaulted [her] and has manipulated the system against [her]”.

[8]                 The hearing of MN’s application was originally set for 28 October 2020 but did not take place until 3 February 2021. The adjournment was because counsel for PK filed a memorandum outlining concerns about PK’s mental health and unfitness to attend court.

[9]                 On 26 January 2021, one week before the adjourned hearing, PK filed a without notice application for a protection order against MN and the application was placed on notice by the Duty Judge (PK’s application). PK’s application alleged that PK had been the victim of sexual, physical and emotional abuse from MN. She alleged specific instances of sexual assault on two occasions, one in December 2019 and the other in January 2020, as well as an incident of strangulation in March 2020.

[10]             At the same time she made a complaint, through her lawyer, to the police alleging that the police had colluded with MN and a social worker to silence her voice. This complaint enclosed statements from PK about the alleged abuse and various

support letters from counselling and other services that PK had contacted for support for that alleged abuse. This complaint and the attachments were included with PK’s application.

[11]             The hearing of MN’s application proceeded on 3 February 2021. There were two interpreters and two support people present for each party. After MN had given his evidence and been cross-examined, a protection order was issued with PK’s consent. The Judge hearing the application considered PK’s consent to the order to have been appropriate. The Judge said that a protection order would have been granted had it been necessary to decide the application on an opposed basis.2 The protection order was issued with standard conditions, a requirement to undertake an assessment for and partake in Presbyterian Support Services and an order that PK could not go within 400 metres of MN’s address. PK completed the prescribed non-violence programme as directed by MN’s protection order.

[12]             PK was directed to advise the Court whether she wanted to proceed with her protection order application. On 22 February 2021 PK’s counsel confirmed that PK wished to proceed. A judicial conference for PK’s application took place on 29 April 2021. PK stressed the importance of having an independent translator available. Judge Walsh directed the Registry to ensure that a translator would be present. An interpreter from the region was not available, so a court-approved interpreter from Auckland with 21 years of experience was obtained.

[13]             On 19 May 2021, PK filed an updating affidavit. This provided further detail of the alleged sexual and physical abuse. It also attached a report from the Waitematā District Health Board regional forensic services to the District Court dated 7 December 2020. This had been sought pursuant to s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 to evaluate PK’s ability to stand trial on the trespass and contravening a protection order charges.

[14]             The psychiatrist who carried out the assessment recounted PK’s background and allegations of physical and sexual abuse and said:

2      [MN] v [PK] [2021] NZFC 985 at [17].

[50] In sum her mental health was suggestive of symptoms of  an  adjustment disorder with a depressed and anxious mood. Acute stressors over the past year have included separation from her partner, losing her job, being socially dislocated, going to prison, and anxiety about her migrant status in New Zealand.

…

[52] It is also possible that [PK] has features of cluster B personality (including borderline, histrionic and narcissist traits) that could potentially include a fear of abandonment, emotional dysregulation, and a sense of entitlement although these were difficult to assess on the basis of the information available to me.

…

[67]      Notwithstanding [PK]’s uncertainty about the consequences of being found guilty of her charges in relation to her immigration status, in my opinion [PK] could, on balance, be considered as fit to enter a plea and was readily able to communicate her preferred plea and defence.

[68]      However, the issue of whether [PK] would be fit to stand trial is somewhat more nuanced. On the basis of my assessment, it seemed probable that [PK] was significantly traumatised as a result of matters arising from her relationship with the complainant. Moreover, I understood that she is likely to have little or no support at her next appearance in the Hastings District Court.

[69]      If [PK] wished to defend her charges it is probable therefore that this would be emotionally challenging for her. This could be further aggravated if she were required to give evidence or, potentially, see the complainant in Court. My assessment of [PK] was prolonged due to the need to calm and assuage her and her emotional response could be equally strong within the Court setting. This could potentially impact on her ability to instruct counsel, follow proceedings, or to give cogent evidence in her defence.

[70]      I would thus respectfully recommend that the Court consider adopting a ‘trauma-informed’ approach in dealing with [PK]’s proceedings. This would as a minimum require a Hindi or Punjabi interpreter, preferably female. A female communications assistant could also assist in identifying the need for breaks in the event [PK] was to become emotionally overwhelmed.

[71]      In the event [PK] was required to give evidence, I am aware of precedent that she could potentially do so via AVL and would respectfully recommend that the court consider that possibility. In the event this was possible, the Court could potentially give further consideration to whether this could be done remotely from an Auckland site.

[72]      I note simply that [PK] has begun to rally a range of personal advocates and professional supports who could be well placed to assist and support her in the resolution of her Court matters and any other matters arising therefrom.

[15]             PK also filed an affidavit from a Margaret Orbell dated 15 March 2021.     Ms Orbell said she had seen a taxi, with a driver of Indian ethnicity, driving along very slowly past PK at about 9.20 pm on 26 February 2021. She said he then did a U-turn and again drove past PK very slowly.

[16]             MN filed an updating affidavit in response dated 2 June 2021. He repeated earlier denials of the allegations made by PK. He denied a new allegation of having driven past PK and pulling a face at her. He did not know of the incident referred to by Ms Orbell but, as he is a taxi driver, he could well have driven past PK. He said the last thing he wanted to do was to antagonise PK because he knew it would lead to PK causing more trouble. He did not know PK identified as transgender until he read it in PK’s affidavit. He expressed concern that PK was using her protection order application to harass him and get back at him for the proceedings initiated against PK. He said:

My position is that I do not believe a protection order is necessary. The reality is that I want nothing to do with [PK]. I appreciate that I am still a bit on edge when I see someone who looks like [PK] or a car like his and this may cause me to be extra cautious but I have never approached him or made faces at him like he is alleging.

[17]             On 2 August 2021 PK filed criminal charges against MN. This alleged five instances of unlawful sexual connection on 15 to 16 December 2019 and six instances between 6 and 7 January 2020.

[18]             MN filed a further updating affidavit on 10 January 2022. MN advised the Court of the charges, that he had engaged a lawyer to defend the charges and that the charges would likely be thrown out. He also advised the Court that PK had been held in prison for an extended period and may be there at present. He also said that he had had no contact with PK since the court hearing on 3 February 2021. He reiterated that a protection order was not necessary as he wished to have nothing to do with PK.

[19]             On 3 February 2022 a support person for PK contacted the Hastings Family Court, requesting to be present at the hearing. The Deputy Registrar informed the support person that only whānau members could be present with the permission of the presiding Judge due to the current COVID-19 settings (Alert Level 4). On 4 February

2022 counsel for PK advised that this person had previously been a support person for PK.

[20]             The Judge provided an initial response to this request on 8 February 2022. She advised that, in making her decision, she would need to ascertain the views of the other parties, whether they also sought a support person to be present, and whether the court would be able to maintain social distancing practices. The Judge also noted that she was advised to limit attendees to seven people.3 That same day Ms Fisher, counsel for MN, informed the Judge that as she was eight months pregnant, she would prefer for no support persons to be present. The Judge declined the attendance of additional support people at the hearing.

[21]             PK’s application was heard in the Hastings High Court on 10 February 2022 with a female translator present.4 PK and MN each gave evidence and were cross-examined. They each maintained very different accounts of the relationship and of the sexual and physical abuse alleged by PK.

[22]             PK was asked in cross-examination why she considered a protection order was necessary. She replied: “[h]e will destroy me, he will kill me …”. She also made new allegations that MN tried to contact her in August and September 2021 when he tried to take her “stuff”. She also said there was an incident in October 2021 at the Marineland hotel or motel where she was staying. She said she thought MN had come in his taxi, tried to pressure the manager and went into her room when she was not there. She did not see him do this but did see his taxi. She also said friends of MN had called her a few days before the trial threatening her not to come to Hastings or attend court.

[23]             MN  said  these incidents did  not occur.  He said  he quit  driving a taxi on  15 August 2021 so the October 2021 allegation could not have happened. He had “no clue” about the alleged phone calls. MN said he had got the protection order against PK because he was in danger. He did not consider there was any reason for PK to be

3      I note that the Judge, the registrar, one counsel for each party, PK, MN and the interpreter makes seven attendees.

4      [PK] v [MN], above n 1.

frightened of him. He said “I never wanted to have any contact with her after all what’s happened” and he “just want to live my life, that’s all”.

Family Court decision

[24]             The Judge noted that Punjabi was the first language for both PK and MN, they could both speak English with fluency issues to different degrees, and an interpreter had assisted at the hearing when required.5 She discussed the background and PK’s allegations of physical and sexual violence by MN.6 The Judge recounted details provided by PK in her affidavit evidence and at the hearing.

[25]             The Judge said that at the start of the hearing it was agreed that there was a relationship and past family violence and the sole issue was therefore whether a protection order was necessary.7 She discussed the principles from the leading case, Surrey v Surrey.8 She then said:

[22]      When considering the evidence in its totality, I find that a protection order is not necessary. [MN] impresses me as a man that wishes to get on with his life without interruption from [PK]. I am satisfied that [MN] will continue to avoid contact with [PK] as he has done in the past. [PK] intends only to visit Hawkes Bay from time to time in the future so this further reduces the likelihood of contact.

[23]      [MN] has given credible evidence. In contrast, [PK]’s recall of the events in December 2019, January 2020 and 16 March 2020 were inconsistent and unreliable. [PK]’s fear that [MN] will ‘kill her’ is both unreasonable and unrealistic.

[26]The Judge discontinued PK’s application for a protection order.9

Law

Approach to appeal

[27]An appeal against a Family Court decision proceeds by way of rehearing.10 In

SN v MN the Court of Appeal confirmed that an appeal against the decision to make

5 At [1].

6      At [2]–[14].

7 At [20].

8      At [21], citing Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581.

9 At [24].

10     Family Violence Act 2018, s 177(4); and District Court Act 2016, ss 124 and 127.

or a refuse a protection order is a general appeal.11 The principles in Austin, Nichols apply.12 This means I must come to my own view on the merits, with PK bearing the onus of satisfying me that I should take a different view than Judge Blake. No deference to the Judge is required except that I must take into account the advantage she had in assessing the credibility of PK and MN.13

Protection orders

[28]             A decision to grant or refuse a protection order is guided by the principles set out in s 4 of the Family Violence Act. Most relevantly for present purposes, at least potentially, are the principles that “family violence, in all its forms, is unacceptable” and “decision makers should, wherever appropriate, recognise that other factors … may mean that people are particularly vulnerable to family violence.”14

[29]Family Violence is defined in s 9 of the Act as:

(1)… family violence, in relation to a person, means violence inflicted—

(a)against that person; and

(b)by any other person with whom that person is, or has been, in a family relationship.

(2)In this section, violence, means all or any of the following:

(a)physical abuse:

(b)sexual abuse:

(c)psychological abuse.

…

[30]             Abuse is defined in s 10. It provides that abuse may constitute a single act, or series of acts forming a pattern of behaviour.15

11     SN v MN [2017] NZCA 289 at [24].

12     Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141; and Surrey v Surrey, above n 8, at [38].

13     Austin, Nichols & Co Ltd v Stichting Lodestar, above n 12, at [16]. Such as, the Judge’s own assessment of credibility.

14     Section 4(a) and (f).

15     Even if all or any of those acts, when viewed in isolation, may appear to be minor or trivial.

[31]             Section 79 governs the circumstances of making a protection order. It requires that the court be satisfied that:

(a)the respondent has inflicted, or is inflicting, family violence against the applicant, or a child of the applicant’s family, or both; and

(b)the making of an order is necessary for the protection of the applicant, a child of the applicant’s family, or both.

[32]             As the parties accepted that they were in a family relationship and that there had been family violence, the key issue was the necessity of a protection order. This aspect of the test was addressed by the Court of Appeal in Surrey v Surrey.16 The Court held that:

(a)The applicant only needs to establish past family violence and a reasonable subjective fear of future violence.17 Then the respondent has the evidential burden of showing there are factors weighing against the necessity of making a protection order.18 The applicant is not required to prove that violence was likely to occur in the future.19

(b)The assessment of necessity requires a broad-based assessment by the Court of the need for protection in the future, having regard to the objects of the Family Violence Act, the factors in s 79, and any other relevant factors.20 The subjective views of the applicant are a mandatory relevant consideration,21 but not the only factor.22 Other factors include: the time that has elapsed since the last violence, whether it is a pattern of violence or single incident, whether separation has occurred since the last violence, vulnerability of the applicant, and other protective measures that may render a protection order unnecessary.23

16     Surrey v Surrey, above n 8.

17     The reasonableness of the fear was reiterated in Q v Q [2012] NZHC 1448, [2012] NZFLR 582 per Heath J.

18     Surrey v Surrey, above n 8, at [43].

19 At [36].

20 At [38].

21     Family Violence Act, s 83.

22     K v G [2009] NZFLR 253 (HC) at [38].

23     SN v MN, above n 11, at [12].

(c)The risk of future violence will obviously be a relevant factor in assessing necessity. But assessing the level of risk does not require a full inquiry with reference to detailed expert evidence.24 The legislation contemplates that the risk will be assessed on the basis of past family violence.25

(d)The seriousness of the past family violence is another relevant factor. The more serious the past violence, the less probable the risk of future violence needs to be to justify the necessity of making a protection order.26

[33]             Where it is established that there was past violence and that making a protection order is necessary, it is:27

… unlikely that a Court could rationally refuse to grant a protection order where the behaviour is such as to lead to reasonable fears of safety based on being subjected to a pattern of recent serious domestic violence, unless there are very strong indications to the contrary. This reflects the Court’s existing assessment of the applicant’s fears as being reasonably held; necessity therefore follows. The Act is designed not only to protect a person against future violence but the reasonably held fear of violence. Cultivating a fear of physical abuse constitutes psychological abuse, and thus satisfies the broad meaning of violence under the Act.

Did the Judge err by excluding a support person?

[34]             PK says that by declining the attendance of a support person, the Family Court Judge predetermined the outcome of the hearing and failed to consider the s 38 report which advised that a “trauma informed approach” should be taken to the proceedings. She says that having a support person at trial would have helped her to give her evidence and this may have led to a different assessment by the Judge of her credibility.

24     Surrey v Surrey, above n 8, at [39].

25 At [40].

26     At [41]–[42].

27     SN v MN, above n 11, at [23] (footnotes omitted).

[35]At the relevant time, the Judge was required to comply with the Court COVID-

19 Protection Framework Protocols dated 31 January 2022.28 According to the protocol, all Court work had to have regard to “safety, with an increased emphasis on the use of remote participation to reduce in-person appearances to the extent practicable”.29 Persons attending the Court were required to observe all physical distancing requirements as specified by the Ministry of Justice, which necessarily resulted “in limits to the number of people permitted to enter the Court building”.30 Support people were limited to whānau support (a whānau member or members), whose attendance had been permitted by the presiding Judge.31

[36]             The Judge had the ultimate discretion to determine whether a support person was allowed or disallowed at the hearing.32 The parties were informed of the COVID- 19 guidelines and of the Judge’s discretion. The s 38 report was available to the Judge. It advised the Judge that in the defence of the criminal charges laid against PK a “trauma informed” approach should be considered, involving as a minimum an interpreter, preferably female. The Court had arranged this for the hearing of PK’s application. The Judge did not follow the suggestion of a female assistant to identify the need for breaks but nor was she required to. The Judge was careful to utilise the services of the interpreter where it was apparent that there might be communication difficulties and she was well placed to assess whether PK was becoming emotional and needed a break.

[37]             The notes of evidence show that the translator was present and used when appropriate. For example (the bolding indicating the translator):

THE COURT:

Q. I’ll just stop you. What I’m going to do is I’m going to ask you the questions, you can speak in your language [PK]. I just want to make sure that I’m getting it correctly and then speak directly to the mic and then Madam Interpreter, you can interpret for me.

28 The hearing was heard under this protocol. A new protocol was released on 14 February, after the hearing. See Chief District Court Judge Heemi Taumaunu Archived COVID-19 Protection Framework – Green, Orange and Red Protocol, commenced on 31 January 2022 (31 January 2022).

29 At [54].

30 At [11].

31 At [65].

32     Family Violence Act, s 170.

A.       Okay.

Q.       Did [PK] see this interference with her vehicle?

A.I saw it though my window because I had files there that the thieves needed to take out of my car for use of evidence. …

[38]             The Judge also prompted PK to take her time giving evidence and referred to the translator for assistance where PK was having difficulty at one point of the proceeding:

THE COURT:

Q.Would you like that to be translated to you or are you able to just read the English? And also if you need a moment, just take it.

A.       The first violent sexual assault –

Q.Just take a moment [PK], just grab a tissue and just compose yourself before you answer. Just take a breath.

…

[39]             The Judge might have exercised her discretion differently given PK alleged she had been the victim of sexual and physical abuse and would be giving evidence about this in the presence of MN. It was nevertheless open to the Judge to disallow a support person to attend the proceedings. I do not know whether a screen was utilised but that was an option potentially available to PK. While the court had been able to accommodate a translator and two support people at the 3 February 2021 hearing, the Judge’s decision was informed by the COVID-19 context and guidelines, and the use of a female translator for support met the “minimum” requirement of a trauma- informed approach that had been discussed for the criminal proceeding. I consider below the Judge’s credibility findings.

Did the Judge err in her findings of the necessity of a protection order?

Credibility assessment of PK

[40]             The Judge found MN credible and PK’s assessment inconsistent and unreliable.33 PK submits that the Judge did not take into account her culture’s treatment of transgender people. There was mention of this in the documents she filed

33     [PK] v [MN], above n 1, at [23].

for her protection order application. For example, the application said that after the sexual and physical abuse in the January incident, she remembered MN’s words that nobody would believe her, and referred to Indian discrimination on the basis of gender identity.

[41]Additionally, her counsel sought to cross-examine MN on this as follows:

Q.       Were you aware of, that she was belonging to the third gender?

A.       Yeah.

…

Q.       So you’re also aware in India that they have persons of such gender?

A.       I did not understand, can you speak a bit loudly.

Q.       Do you know that even India has persons like PK?

A.       Yeah.

Q.And you know that this is a very exploited class, are you aware of    that?

A.       Exploited means?

Q.       They are sexually exploited.

A.People in India like her, they are sexually exploited? Yeah might be,  I’m not–

[42]             At this point, counsel for MN objected. The objection and any response from the Judge is not transcribed in the notes of evidence but, in any case, counsel continued with a further question:

Q.Because the entire case was that she was sexually exploited, so what I’m trying to say is that this is basically, a trait, I’m not being very racist, but in part of the Indian community that –

[43]             At this point the Court intervened. I infer this was because this witness was not qualified to give evidence on sexual exploitation of transgender people in India and possibly also on the basis this was irrelevant. It would be faulty reasoning for the Judge to find that PK’s allegations of sexual and physical abuse were likely to be true because she was transgender and that was how Indian people treat transgender people.

[44]             PK also submits that the Judge’s assessment failed to take into account that inconsistencies in evidence may be explained by PK’s trauma as a sexual abuse survivor and she did not have a support person. The detail of PK’s allegations of sexual and physical abuse were only relevant to whether PK had a subjective fear on reasonable grounds. This is because the existence of family violence was accepted. Nevertheless, if PK’s allegations were true, she could be fearful of MN.

[45]             I accept that PK would likely have been somewhat more comfortable in giving evidence if she had a support person present. Judges are, however, well familiar with how difficult it is for victims of sexual abuse to give evidence about that abuse. Judge are also well familiar with victims of sexual abuse getting matters of detail wrong. A common example is where and when a particular incident occurred but there can be inconsistencies or errors in recall made on a whole range of detail. Judges understand that this does not mean that the abuse never happened.

[46]             Here, PK’s account of the sexual and physical abuse appeared to add some detail over time. For example, in PK’s complaint to the Police Conduct Authority she referred to MN forcing objects in her anus. However, in cross-examination, when challenged about this evidence, she said “the object I was referring to the hand he was pushing inside”. When it was then put to her that there was no mention of this in her affidavit evidence, PK said she had mentioned it to the police and it had happened.

[47]             PK also made new allegations concerning MN’s alleged later contact with PK. Mostly these had the air of unreality about them. For example, she said that MN and other people were trying to get documents out of her car. She said this was to take “evidence” but did not say what that evidence might be and it is unclear what it could have been. She also said that MN went into her hotel room to get her stuff. Again, it is unclear why this would happen and the allegation was apparently based solely on seeing a taxi outside the hotel. It could not have happened because MN was no longer driving a taxi.

[48]             There was a reasonable basis for the Judge’s conclusion that PK’s evidence was unreliable. As the trial judge, she had the advantage over this Court in making that assessment. I am not persuaded the Judge’s assessment was wrong. However,

and more importantly, regardless of PK’s reliability on the sexual and physical abuse, a protection order was not necessary if MN had no intention of contacting PK and if it was unreasonable for PK to fear that he would. I discuss this below.

Immigration status

[49]             The appellant was living in Auckland at the time of the hearing. She was unemployed. Her affidavit evidence included references to her having lost her job in November 2019, being out of work in January 2020, and working again in February 2020 until at least May 2020.

[50]             In cross-examination, she was asked about whether she planned to return to Hawke’s Bay:

Q.       Is it your plan to return to Hawke’s Bay?

A. I have job opportunities in Hawke’s Bay and I have friends here and I used to stay here. Two days, I yesterday stayed with my friend … and I have like working – workmates who look after me when I was here.

Q.       Sorry is it your plan to [sic] Hawke’s Bay?

A.I’d like to come sometimes but I don’t want to stay permanently here but I’d love to stay and come here and visit here.

Q.So if you do not return to live in Hawke’s Bay, it’s unlikely that you   will have any contact with [MN] anyway, isn’t it?

A. No [MN] is not stopping because just four  days  before  of  the  protection order I’m getting phone calls from the people: “Don’t come into the Hawke’s Bay for the Court hearing in Family Court and if you come we will do something to you”, and I get threatening calls and I report it to police.

[51]             In re-examination, despite it not arising out of cross-examination, she raised her immigration status, as follows (bold answer is from the interpreter):

Q. In your work is there any condition that you  are  to work  in any particular area?

A.My work is situated in Hawke’s Bay so I have to come and stay and I have to work in this region but at the moment I am unemployed because of this issue, from last one and a half years I’m not working because of the sexual assault and he put stalking charge on me. Because of that I can’t come and stay in Hawke’s Bay region but my restriction of immigration that I have to work in Hawke’s Bay only, I

am only allowed in Hawke’s Bay work, work in Hawke’s Bay region and it is affecting me like financially very badly for the last one and a half years and I don’t have money sometimes to get my food and I was very like a senior technician in Hawke’s Bay, I work as a supervisor and he destroyed my whole life, whole career.

QUESTIONS FROM THE COURT:

Q.How long have you been living in Auckland, when did you move   there?

A.       I just moved last month, one month ago.

Q. In terms of that visa issue, have you made an application to get that  varied so that you are able to work from where you live now?

A. The problem I have, the restriction I have needs to be working in Hawke’s Bay region and I have to find a company in Hawke’s Bay region. So otherwise I can’t get that visa.

Q.I haven’t had any experience with immigration, I was asking if there was an ability for you to vary your work visa.

A.       Like I find very hard for the last one and a half years.

Q.Sorry the question was, is there an ability for you to vary your work  visa?

A.       I asked them but they didn’t at the moment because I was –

Q.       But you have asked?

A.       My court case he started stalking – he put stalking charge.

Q.No, no I’ll stop you there because I’m asking you specifically about  your visa. So you’ve applied?

A. Yes I have, but they have said that you cannot work anywhere else apart from where your visa allows you to work which is Hawke’s Bay.

[52]             Later in the re-examination, in response to questions from the Court, she said she could not work because of the charges against her and the EM bracelet:

Q.       So when was that?  Was that last year in 2021?

A. Yes, because of that Ma’am I can’t do work because my job is a customer-based job and people are scared for me that I have bracelet and because I was charged as well which was innocent, I am innocent, I didn’t done anything, I’m well qualified. I have many evidence and I have very support, good letter from my employer. I was a supervisor, I worked for the same company for four years.

[53]             I consider that the Judge did not err by failing to take into account PK’s evidence that her immigration status restricted her to work in the Hawke’s Bay. PK’s evidence about this was not substantiated by any documentation. As the evidence came only in re-examination, MN did not have the opportunity to make inquiries before the hearing to provide a basis to challenge it. It also lacked credibility, given her earlier response that she wanted to come to Hawke’s Bay to visit but she did not want to come to stay permanently. It seems from her evidence that her EM bracelet was preventing her from working in her technician role anyway because people were scared of her wearing a bracelet.

[54]             It any event, even if she did need to work in Hawke’s Bay to maintain her immigration status, that did not make a protection order necessary. If she were to obtain employment in Hawke’s Bay and inadvertently come across MN in her work she would need to take action to maintain her distance from MN in accordance with his protection order. As MN did not want any contact with PK, this would not be difficult.

Otherwise necessary?

[55]             PK was questioned about her subjective belief as to the necessity of a protection order as follows (emphasis added):

Q.       [MN] did not contact you directly did he?

A.       No he’s trying to indirectly.

…

A.       No I don’t have any contact and I don’t want in my future.

Q.       Why then do you think a protection order is necessary?

A.       He will destroy me, he will kill me if he will be going –

Q.Sorry, he will kill you.  That’s  quite an extreme comment to make.   What evidence do you have that you believe [MN] is going to kill you?

A. Well, he will be going, what he did on me, then he will do those things on me and it will happen to me.

Q.And how is he going to do those things when he does not know where you are living.

…

Q.Sorry my question is have you ever directly given [MN] your address in Auckland?

A.No but indirectly he’s contacting me from the last five or six days and I don’t feel that good.

[56]             The subjective fear of the applicant is only one factor. The Court must evaluate the totality of the evidence and circumstances. This reflects Parliament’s intention that protection orders are not to be used to protect people from unrealistic and unreasonable fear of abuse.34

[57]             Here, there was simply no reasonable basis for PK to fear that MN would kill her. There had been no alleged instances of sexual or physical abuse since March 2020. They had not been in a relationship since early 2020. MN was adamant he wanted nothing more to do with PK and just wanted to get on with his life. His credibility about that was supported by the fact that he obtained a protection order following continued unwanted contact from PK after the end of the relationship and PK apparently proceeded to breach that protection order on several occasions. This was evidence that it was PK, not MN, who wanted to continue with contact.

[58]             MN was also adamant that he had not had any contact with PK after the court hearing on 3 February 2021:

Q.… Firstly, can you please advise the Court when the last time you had direct contact with [PK]?

A.I think we had last court, I think that was the last one I saw [her] and I have not seen [her] like after all.

THE COURT:

Q.       So are we talking about the 3rd of February?

A.       3rd of February.

EXAMINATION CONTINUES: MS FISHER

…

Q.So other than being in court together, have you had any contact whatsoever?

34     A v B [2008] NZFLR 65 (HC) at [23].

A.       No, no, not at all.

[59]             PK may well have been genuine about thinking that it was MN driving past her in his taxi and making gestures at her, trying to get documents from her car or her “stuff” from a hotel room, or having his friends call her shortly before the hearing. Ms Orbell’s evidence provided only weak support for this evidence. She did not identify MN as the driver of the taxi, only that he appeared to be Indian. Even if it was MN, it related to an incident nearly one year prior to the hearing of PK’s application. There was no evidence to corroborate PK’s evidence about later contact. If genuine in her belief that MN was trying to contact her, there was no reasonable basis for that belief.

[60]             The likelihood of contact was also low. The evidence of both PK and MN was that they did not want contact with each other. PK was living in Auckland. She did not establish that she needed to return to Hawke’s Bay to work. She had said that she did not want to live in Hawke’s Bay and only wanted to visit. This meant the opportunity for MN and PK to come into contact with each other was limited. Moreover, during the period of her remand on EM bail, the conditions of that bail prevented her from entering the area except for court business and only in the presence of her lawyer. As the likelihood of contact was low, the risk of future violence was also low.

Result

[61]The appeal is dismissed.

[62]             Leave is reserved to the parties if there is any issue as to costs. If there is, brief memoranda (no more than three pages) should be filed by 20 January 2023.

Mallon J