Rudman v Way HC Auckland CIV 2008-404-2893

[2008] NZHC 1162

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2008-404-2893

BETWEEN  TIMOTHY ALBERT RUDMAN Appellant

ANDAMANDA JANE WAY Respondent

Hearing:         16 July 2008

Appearances: P Heaslip for appellant

J G Robertson and F P Timmins  for respondent

Judgment:      22 July 2008

JUDGMENT OF ALLAN J

In accordance with r 540(4) I direct that the Registrar endorse this judgment with the delivery time of 10.30 am on Tuesday 22 July 2008

Solicitors:

Paul Heaslip PO Box 4108, Shortland St, Auckland  [email protected]

J G Robertson, PO Box 295, Ostend, Waiheke Island

T A RUDMAN V A J WAY HC AK CIV 2008-404-2893  22 July 2008

[1]      This is an appeal against a decision of the Family Court at Auckland given on

7 May 2008, granting a protection order in favour of the respondent, and directing that the appellant attend a specified programme pursuant to the provisions of s 32 of the Domestic Violence Act 1995 (the Act).

[2]      The primary ground upon which the learned Family Court Judge made the orders concerned arose from an incident between the parties on 8 January 2008. That incident has led to the appellant being charged with male assaults female;  he has elected trial by jury on that charge.  The trial is unlikely to take place before next year.

[3]      Mr Heaslip takes the following points on the appellant’s behalf:

a)       In all the circumstances the Family Court Judge ought, instead of making   the   orders,   to   have   adjourned   the   domestic   violence application to await the outcome of the criminal proceeding;

b)In any event there was no need for a protection order because the respondent was adequately protected by the bail conditions to which the appellant is subject pending his trial;

c)       The Family Court Judge ought not to have ordered the appellant to attend the specified programme.

Background

[4]      At all material times the parties each lived on Waiheke Island.  During the period 2001-2008 there was a close personal relationship between them.  Although they did not set up a common household there were regular overnight visits and there were times when the relationship could be said to be continuous.

[5]      The  relationship  was  not  problem-free.     Periods  of  disharmony  and antagonism were followed by reconciliations.  It is not in dispute however, that the parties were in a domestic relationship for the purposes of s 4(1) of the Act.

[6]      In  April  2004  the  respondent  obtained  a  protection  order  against  the appellant.      That   order   was   discharged   on   the   respondent’s   application   on

23 September 2004, the parties having by then having become reconciled.

[7]      On 30 January 2008  an incident occurred at the appellant’s home.   The parties were once more at odds.  The respondent had called to collect her personal effects.   It appears from the evidence that they disagreed as to her entitlement to collect items which she believed to have been in the appellant’s house, but which were not immediately available near the front door.  A scuffle ensued, in the course of which the respondent sustained bruising to her head and arms.  The appellant also sustained injuries, chiefly scratches which the respondent inflicted in what she said was self-defence.   The police were subsequently contacted and the appellant was ultimately charged with the offence colloquially known as “male assaults female”.

[8]      The  respondent  applied  without  notice  for  a  temporary  protection  order pursuant to s 13 of the Act.  An order was made on that application on 21 February

2008.  The order included a standard direction that the appellant attend a specified programme.

[9]      The  appellant  subsequently  filed  a  notice  of  objection  to  the  temporary protection order and the direction that he participate in the specified programme. The matter was heard inter parties on 7 May 2008.  At that hearing Judge Fleming made a final protection order and imposed a direction that the appellant attend the “Living Without Violence” programme on Waiheke Island.

[10]     Mr Rudman now appeals against that decision.   He says that neither the protection order nor the order requiring him to attend the specified programme ought to have been made.

The proper appellate approach

[11]     Mr Robertson submitted that this Court should be slow to interfere on appeal because the learned Family Court Judge had the advantage of seeing and hearing the parties, and indeed of questioning them herself.   Moreover, this being a domestic violence case, the High Court ought to show appropriate restraint and deference in recognition of the specialist knowledge, skills, and experience of Family Court Judges.   In support of that submission he referred to the decision of Stevens J in Renshaw v Underhill HC HAM CIV 2007-419-507 22 February 2008.  There, at [34] the  Judge  reproduced  a  summary  of  certain  principles  which  first  appeared  in Swayne v Lush [1999] NZFLR 49 at 56:

I consider the relevant principles to be applied to appeals under the Act are as follows:

(1)Appeals under the Act are by way of rehearing, although, pursuant to s 76 of the District Courts Act, they will take place on the notes of evidence in the Family Court (subject as in para 5(a) below).

(2)     Appeals may be of fact and/or law.

(3)The appeal Court will normally be reluctant to substitute its view for that of the Family Court, the onus being on the appellant to prove that the trial Judge was wrong (Wright v Powell [1982] 1 NZLR 473).

(4)Where the decision of the Family Court Judge involves the exercise of a discretion, the appeal Court will be reluctant to interfere. The appeal Court will intervene only if the appellant shows that the trial Judge acted on a wrong principle; failed to take into account some relevant matter; took account of some irrelevant matter; or was plainly wrong. (May v May (1982) 1 NZFLR 165 at 170).

(5a)The  appeal  Court  may  receive  new  evidence  or  rehear  evidence, subject to the provisions of s 76(2) and s 76(3) of the District Courts Act.  When that occurs, the appeal Court may be required to exercise its fresh judgment on the matter at hand.  Judgment may be given as ought to have been given if the case came at that time before the Family Court, provided that the law is to be applied as it was when the trial   occurred   (Pratt    v    Wanganui    Education    Board    [1977]

1 NZLR 476).

(5b)Where no credibility or factual findings are involved the appeal Court may substitute its decision for that of the original tribunal.

(6)In applying the principles on general appeals, the appeal Court should recognise the specialised  insights,  skills  and  experience  of  Family Court Judges which this Court has already acknowledged under the old s 31 of the Act.   The onus resting on the appellant represents a

procedural method by which the Family Court Judge’s findings must be borne in mind (Wright v Powell).

[12]     The Judge also referred to the oft-cited case of Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 in which members of the Court, but in particular Thomas J, suggested that an appellate Court ought to interfere with a trial Judge’s factual findings where credibility issues arise only in exceptional circumstances.

[13]     The passages in Renshaw v Underhill to which Mr Robertson referred the Court provide a useful summary of a number of considerations relevant to the proper approach to be taken on appeal.  But what was said in that case needs to be read in the light of the recent decision of the Supreme Court in Austin Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141. There, as here, the Supreme Court was dealing with a first instance decision made by a decision-maker possessing special expertise, in that case an Assistant Commissioner of Trademarks. The reasons of the Court, in dismissing the appeal, were given by Elias CJ, who took the opportunity to restate the task of an appellate Court in general terms. The judgment warns against according excessive weight given to the findings of specialist Courts and Tribunals.

[14]     At [5] the Chief Justice said:

The  appeal  court  may  or  may  not  find  the  reasoning  of  the  tribunal persuasive  in  its  own  terms.  The  tribunal  may  have  had  a  particular advantage (such as technical expertise or the opportunity to assess the credibility of witnesses, where such assessment is important). In such a case the appeal court may rightly hesitate to conclude that findings of fact or fact and degree are wrong. It may take the view that it has no basis for rejecting the reasoning of the tribunal appealed from and that its decision should stand.  But  the  extent  of  the  consideration  an  appeal  court  exercising  a general power of appeal gives to the decision appealed from is a matter for its judgment. An appeal court makes no error in approach simply because it pays little explicit attention to the reasons of the court or tribunal appealed from, if it comes to a different reasoned result. On general appeal, the appeal court has the responsibility of arriving at its own assessment of the merits of the case.

[15]     Later in the judgment the following passage appears:

[16]      Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the

appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion

[16]     For present purposes, the importance of the cited passages lies, I think, in the emphasis placed on the need for an appellate Court to exercise its own judgment in determining the weight to be placed upon findings of fact, or fact and degree, made by a specialist Court or Tribunal.  As Elias CJ says, an appellate Court may rightly hesitate to differ from the findings of a first instance Court or Tribunal, particularly where the Judge concerned is a specialist Judge of considerable experience, but the appellate Court must nevertheless form its own opinion rather than simply defer to the lower Court’s assessment.

[17]     In  this  judgment  I  have  taken  account  of  the  guidance  provided  by  the

Supreme Court.

The duality point

[18]     When delivering her judgment of 7 May 2008, Judge Fleming was well aware of the pending criminal trial faced by the appellant.  It is expressly referred to in her judgment.   Mr Heaslip submits that the Judge was wrong to have made an order prior to the pending criminal trial.  She should have discharged the temporary order and deferred making any final order until the result of the criminal proceeding was known, he argues;  in other words, she should have adjourned the application to await the outcome of the criminal case.

[19]     That submission, and the reasons for it, need to be considered against the relevant statutory background.  The appellant’s objection to the temporary order was duly notified to the Court and to the respondent in terms of s 76 of the Act, which reads:

76     Respondent to notify intention to appear

(1)        Where the Court makes a temporary order under this Act, the respondent is entitled to notify the Court that he or she wishes to be heard on whether a final order should be substituted for the temporary order.

(2)       The temporary order must contain a notice to the respondent that clearly states—

(a)      The respondent's right under subsection (1) of this section;

and

(b)That, subject to sections 36, 78, and 79 of this Act, if the respondent does not take any steps in the proceedings, the temporary order becomes final in accordance with section 77 of this Act by operation of law 3 months after the date on which it is made.

(3)       Where  the  respondent  notifies  the  Court,  in  accordance  with subsection (1) of this section, that he or she wishes to be heard, the Registrar must assign a hearing date, which must be—

(a)      As soon as practicable; and

(b)      Unless there are special circumstances, in no case later than

42 days after the receipt of the respondent's notice.

[20]     It will be observed that the Registrar is required to assign a hearing date for a defended application as soon as practicable, and unless there are special circumstances, in no case later than 42 days after the receipt of the respondent’s notice.  Of itself, that provision is indicative of the intention of the Legislature that domestic violence matters be handled with celerity and that the parties are not left for significant periods of time without resolution of the invariable stressful issues which arise on such applications.  Parliament’s intention is further reflected in s 80 which, unusually, expressly empowers the Court to adjourn the hearing to a fixed time and place, but only upon “good cause being shown”:  s 80(1)(d).

[21]     Moreover, where a hearing is so adjourned for good cause, the Court must not, at that adjourned hearing, exercise the power to adjourn the hearing to a further date, “ … unless there are special reasons for doing so”:  s 80(4).  So the Court may grant a first adjournment “ …on good cause being shown…” but no further adjournment is to be permitted unless there are “special reasons for doing so”.  The legislative intention is plain:  domestic violence applications are not to be adjourned as a matter of course;  there will need to be cogent grounds.

[22]   As Mr Robertson points out, the mere existence of concurrent criminal proceedings will not be enough to justify an adjournment.   Domestic violence applications are routinely conducted in parallel with criminal proceedings where the respondent’s alleged behaviour is also said to constitute a criminal offence.   Mr Heaslip nevertheless submits that that the appellant can show both “good cause” and “special reasons” here.

[23]     Sometimes it will be appropriate to adjourn a civil proceeding or to grant a stay pending the outcome of parallel criminal proceedings.  Whether or not to grant an adjournment or a stay will often involve a careful assessment of a number of competing considerations.  There is a useful review of the law in a civil context in the judgment of Master Venning (as he then was) in Invensys Plc v Load Logic Ltd HC CHCH CP73/01 26 March 2002 at [20].   The Court adopted there a set of guidelines suggested in McMahon v Gould (1982) 1 ACLC 98 where Wootten J reviewed the then state of the authorities in Australia and elsewhere, and summarised the position as follows:

(a)  Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the Court (Rochfort v John Fairfax & Sons Ltd at p 19);

(b) It  is  a  grave  matter  to  interfere  with  this  entitlement  by  a  stay  of proceedings, which requires justification on proper grounds (ibid);

(c)  The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff’s ordinary rights should be interfered with (Jefferson Ltd v Bhetcha at p 905);

(d) Neither an accused (ibid) nor the Crown (Rochfort v John Fairfax & Sons Ltd at p 21) are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding;

(e)  The Court’s task is one of ‘the balancing’ of justice between the parties’ (Jefferson Ltd v Bhetcha at p 904) taking account of all relevant factors (ibid p 905);

(f)  Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors (ibid p 904);

(g) One factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused’s

‘right to silence’, and the reasons why that right, under the law as it

stands, is a right of a defendant in a criminal proceeding (ibid p 904);

(h) However, the so-called ‘right of silence’ does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings.   The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding (ibid pp 904-905);

(i)  The  Court  should  consider  whether  there  is  a  real  and  not  merely notional danger of injustice in the criminal proceedings (ibid p 905);

(j)  In this regard factors which may be relevant include:

(i)  The possibility of publicity that might reach and influence jurors in the civil proceedings (ibid p 905);

(ii) The proximity of the criminal hearing (ibid p 905);

(iii) The  possibility  of  miscarriage  of  justice  eg  by  disclosure  of  a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses (ibid p 905);

(iv) The  burden  on  the  defendant  of  preparing  for  both  sets  of proceedings concurrently (Beecee Group v Barton);

(v) Whether  the  defendant  has  already  disclosed  his  defence  to  the allegations (Caesar v Sommer at p 932, Re Saltergate Insurance Co Ltd at CLC p 34, 131;  ACLR p 736);

(vi) The conduct of the defendant, including his own prior invocation of civil process when it suited him (cf Re Saltergate Insurance Co Ltd at CLC p 34, 131; ACLR pp 735-736)

(k) The effect on the plaintiff must also be considered and weighed against the effect on the defendant … . it may be relevant to consider the nature of the defendant’s obligation to the plaintiff;

(l)  In an appropriate case the proceedings may be allowed to proceed to a certain stage, eg setting down for trial, and then stayed (Beecee Group v Barton).

[24]     While  acknowledging  that  these  guidelines  probably  signal  the  correct approach in the present case, Mr Heaslip was unable to point to any of the listed factors as being of significant application here.  The appellant’s right to silence in the criminal proceedings remains unaffected.  Of course, he has chosen to give evidence on oath in the domestic violence proceedings, and runs the risk that if he gives contrary evidence at his criminal trial, then the prosecution might seek to put to him his evidence in the present proceeding as an inconsistent statement, but the outcome

of this appeal will not affect that issue.  Moreover, as Mr Heaslip readily accepts, nothing said by the appellant on oath in the course of the present proceeding operates to the appellant’s prejudice.  If he gives evidence at trial, then it will be to the same effect as was given to the Family Court Judge.  This is not the sort of case in which the appellant could seek a tactical advantage by “keeping his powder dry”.  At the criminal trial the jury will no doubt be faced with a conflict of evidence, and will need to determine whether, beyond reasonable doubt, the Crown has shown that the respondent’s account must be preferred to that of the appellant.

[25]     The  real  nub  of  Mr  Heaslip’s  argument,  appears  to  be  related  to  the procedural disadvantage which he believes will be suffered by the respondent, by reason of the existence of a domestic violence order against him at the time of the criminal trial.  Mr Heaslip is concerned that the prosecution at that trial will seek to adduce evidence of the existence of the order, and will, for that purpose seek the leave of the trial Judge to produce a certificate.

[26]     In my view there is no prospect whatever that the trial Judge will admit such a  certificate,  and  very  little  prospect  that  counsel  for  the  prosecution  would endeavour to have it admitted. The certificate would, of course, be highly prejudicial to the appellant at his trial.   More importantly however, it would be probative of nothing.  The grounds for the making of a protection order are completely different from the substance of the offence with which he is charged.

[27]     Further, the standard of proof before a Family Court Judge was a different, lesser standard.  So nothing is to be drawn from the existence of a domestic violence order,  and  there  is  no  practical  prospect  of  the  order,  or  the  Family  Court proceedings, being referred to in the course of the criminal trial. The jury will be concerned only with the events occurring on 30 January.  Mr Heaslip’s fears are, in my view, without substance.

[28]     I was referred to the decision of Judge Whitehead in NAD v ARB [Protection Order] [2007] NZFLR 287, where a defended application for a protection order was heard at a time when the respondent was awaiting trial for the rape which seems to have triggered the application.  There at [2] the Judge said that:

The fact that the Family Court is hearing this matter now prior to depositions and trial creates considerable difficulties for this Court, firstly because it could be seen that the evidence provided in this Court could prejudice the subsequent evidence in the Criminal Court which is not a consideration that I can take into account because the Domestic Violence Act requires this Court to dispose of matters within a statutory time-frame and as a result where such a serious charge is levelled, it will obviously create the situation where the Family Court will hear the issue before the substantive criminal trial.

[29]     Evidently the Judge considered that although the continuation of a hearing in the Family Court might have a prejudicial effect on the subsequent criminal proceedings (presumably in respect of the fairness of those proceedings) the Family Court was nevertheless bound to dispose of the proceeding before it, by reason of the statutory time frame which the Act stipulates.

[30]     That must, I think, be the ordinary approach.  The power to adjourn for good cause, or on a second adjournment for special reasons, is not to be exercised lightly and in cases such as the present would require the applicant for an adjournment to demonstrate a real likelihood of prejudice in the subsequent criminal proceedings. No such prejudice has been demonstrated here.  Judge Fleming was quite right in my view to proceed to hear and determine the application.

[31]     It should perhaps be mentioned that at the hearing in the Family Court the appellant chose not to be represented by counsel.   He did not raise the point now taken by Mr Heaslip so it is not surprising there is no express reference to it in the judgment of Judge Fleming.

Necessity for an order

[32]     Section 14(1) of the Act provides:

14    Power to make protection order

(1)    The Court may make a protection order if it is satisfied that—

(a)The  respondent  is  using,  or  has  used,  domestic  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, or a child of the applicant's family, or both.

[33]     The Court may make a protection order only if it is satisfied both that the respondent has used domestic violence, and that the making of an order is necessary for the protection of the applicant or a child of the applicant’s family, or both.

[34]     Domestic violence is defined in s 3.  It means violence against one person by another with whom that person is, or has been, in a domestic relationship.

[35]     Section 3(2) defines “violence” for the purposes of the Act as meaning:

(a)    Physical abuse: (b)  Sexual abuse:

(c)Psychological abuse, including, but not limited to,— (i)          Intimidation:

(ii)      Harassment:

(iii)     Damage to property:

(iv)     Threats of physical abuse, sexual abuse, or psychological abuse:

(v)      In relation to a child, abuse of the kind set out in subsection

(3) of this section.

[36]     Mr Heaslip submits that even if the learned Family Court Judge was justified in deciding that the appellant had used domestic violence against the respondent, she ought not to have made an order because no order was necessary in the particular circumstances of this case.  In support of that submission, Mr Heaslip relied on two principal considerations:   first there is a non-association stipulation among the conditions upon which Mr Rudman was released on bail  pending  his  trial,  and second, there is also a requirement that he live at a nominated residence.  Although initially the residence concerned was on Waiheke Island, I was told by Mr Heaslip that the appellant is now living on the mainland.

[37]     Mr Heaslip’s argument is that the respondent has ample protection from the appellant by reason of these bail conditions – he is obliged to refrain from contacting her and he is required to live apart from the respondent.  As Mr Heaslip points out, a breach of either of the conditions renders the appellant vulnerable, at least in theory,

to a remand in custody.  Although I was provided with no formal evidence of the bail conditions, I am content to accept Mr Heaslip’s assurance as to the existence of the two conditions concerned.

[38]     In  my  opinion  this  argument  is  misconceived.    The  bail  conditions  are imposed in respect of the criminal proceeding to which the parties are the Crown on the one hand and the appellant on the other.  The respondent plays no part except as a  witness,  and  has  no  control  over  the  appellant’s  bail  conditions  or  their enforcement.

[39]     The manifest purpose of the Act is to provide applicants with an avenue by which to secure orders which will provide a measure of personal security for them. The choice to make an application under the Act in this case was that of the respondent.  She is entitled to ask the Court to consider her application on its merits, unencumbered  by any consideration  of  parallel  criminal  proceedings,  or  of  bail conditions in proceedings to which she is not a party.  In other words, she is entitled to have control of her application in her capacity as an applicant.

[40]     The existence of a protection order in parallel with a bail condition of similar scope and effect, is not prejudicial to the appellant, and indeed, Mr Heaslip freely conceded that he was unable to point to any specific prejudice.   His argument is founded rather on a narrow reading of the word “necessary” in s 14(1)(b) of the Act. I reject that approach.  It cannot be right that an applicant is deprived of an order that would otherwise be appropriate, simply by reason of the existence of criminal proceedings in which the Court has seen fit to impose certain bail conditions over which an applicant has no control.

[41]     Similarly,  a  direction  as  to  residence  imposed  upon  the  appellant  in  the criminal proceedings cannot of itself deprive the respondent of the right to an order. Mr Heaslip says in addition that the appellant no longer resides on Waiheke Island and his bail conditions have been varied so as to record a mainland address.  That may be so, but there is nothing to suggest that the appellant will not at some stage in the future resume residence on Waiheke where he has a house property.  Moreover, and importantly, the appellant accepted before the learned Family Court Judge that

he lived on Waiheke Island at the time of the hearing.  This point is therefore new;  it remains open to the appellant to apply to the Family Court for the discharge of the order if he believes that his change of residence has rendered the protection order no longer necessary.

[42]     Mr Heaslip also submitted, rather more generally and with less vigour, that the evidence before the Family Court considered as a whole, did not justify making an order.  In that respect he referred to the judgment of Fisher J in  M v N HC HAM AP27/01 12 July 2001, and in particular to the observations of the Judge at [17]:

In deciding whether a protection order was necessary to protect Ms N I adopt the remarks of Hammond J in Doyle v McEwen [2001] NZLR 23 at p 28 para 34 where he said:

The requirement for “necessity” is a central requirement for jurisdiction under the Act. In the course of day-to-day living some degree of interaction between estranged persons may well occur. This Act cannot be utilised merely to stop social interaction, sometimes  of  an  unattractive  character,  however  devoutly  one person may want that to happen. An order of this kind is a powerful order, and an intrusion into the normal condition of social intercourse.”

[18]     It is true that one of the elements to be taken into account was the perception of Ms N. However, the fact that she sought a protection order could  not,  of  itself,  be  translated  into  a  finding  that  one  was  needed, especially when it is  borne in  mind  that at the time  the  two  were  still engaged in an  unresolved  property dispute  to  which both seem to  have contributed equal degrees of antipathy.

[19]      I respectfully agree with Hammond J that the Act should not be used solely to prevent unpleasant social interaction, without more. The need for protection must be tangible. The literal definition of psychological abuse is very broad. If protection orders were granted in every case where there were an  isolated  incident  capable  of  coming  within  that  definition  very  few couples in the land would be immune. That cannot have been the intention that underlay this extremely important Act. There can be no hesitation over granting orders where domestic violence has put someone at genuine risk, especially where, as here, the defendant has marked physical superiority over the applicant. But the Act is not to be trivialised. There was no finding here that Mr M represented a real threat to Ms N. In the absence of such a finding there was no jurisdiction to make the order.

[43]     I accept at once that no order ought to be made unless and until a Judge is satisfied that the requirements of s 14(1) have been made out.  Orders are not to be made in a defended case without proper consideration of all of the available factual material, including the case made by a respondent.  But in the present instance, I am

satisfied that the learned Family Court Judge had ample grounds upon which to make an order.  The latter part of her oral judgment reads as follows:

[14]      I have two versions of events in relation to the incident, the major one being the incident in January.  I, in the end, am satisfied on the balance of probabilities that the incident occurred in the way described by Ms Way, as  opposed  to  Mr  Rudman.    I  find  it  difficult  to  accept  Mr  Rudman’s evidence that he was not responsible for the bruising of Ms Way’s arm (a photograph of which has been produced).   I accept that bruising is a notoriously poor indicator of force used.  It is simply my impression of what Mr Rudman had to say when he denied that he caused that bruising, that means I had some doubt about his evidence.

[15]     I have no doubt that there was joint physical scuffling that went on because both parties say that that is what occurred.  That is clear.  However, I am satisfied that the way in which Mr Rudman dealt with the incident did amount to violence.  I am satisfied on the balance of probabilities, which is the standard of which I need to be satisfied, before I then consider making a protection order.

[16]      The next issue is therefore whether or not the order is necessary for Ms Way’s protection.  I clearly must have regard to her perception of what has occurred when making that decision and also the history of complaints about violence, either in the form of physical abuse or general harassment.  I am satisfied that it is necessary at this stage for the protection order to be made and that it should be made.

[17]      I  am  satisfied  that  there  is  evidence  of  continued  watching  by Mr Rudman and there is also the criminal charges which Mr Rudman is facing which are likely to mean that the parties remain in a position of intense and heightened conflict, whether overt or covert, for a number of months to come.  They live in a relatively small community.  I am satisfied that the protection order should be made.

[44]     It is to be noted that the Judge placed primary emphasis on the January incident and decided as a matter of fact that the account given by the respondent was to be preferred to that of the appellant.  She had photographs of the bruising on the respondent’s upper arm and of other injuries said to have been caused by the appellant.  It was open to her to conclude that the photographs were consistent with the account of the incident given by the respondent, and inconsistent with the appellant’s version.

[45]     But it is clear from her judgment that in deciding that an order was necessary, she relied on matters beyond the January incident.  She referred to the respondent’s perception of what had occurred;  that was justified by reason of the provisions of s 14(5)(a).   She referred also to the history of complaints about violence in this

relationship.  It is to be remembered that there had been an earlier protection order in

2004, later discharged when the parties reconciled.  Earlier complaints related both to physical abuse and to harassment, which falls within the definition of domestic violence.

[46]     There was evidence before the learned Family Court Judge of the appellant watching  the  respondent’s  residence  for  a  significant  period.    That  was  also explicitly referred to by the Judge and taken into account by her. Finally, the Judge quite properly took into account the risk of future conflict arising from the forthcoming criminal trial, at which the respondent would be giving evidence for the Crown.

[47]     There was ample evidence to justify the making of an order in this case, which is quite different from M v N.  There, there was little basis for an order, other than a desire to prevent unpleasant social interaction between the parties.

[48]     In my opinion, the Judge was perfectly correct to conclude that an order was necessary in this case.

Specified programme

[49]     The Judge directed that “ … in the circumstances Mr Rudman ought to attend a programme.  The order that he attend a programme is therefore reinstated, having been suspended at the last hearing”.  Mr Heaslip submits that this direction ought not to have been given without further explanation.  He argues that:

a)        the  Judge  has  overlooked  the  fact  that  the  appellant  had  already completed a programme;  and

b)if the appellant is convicted at his criminal trial, more far-reaching rehabilitative orders will be available to the sentencing Judge.

[50]     Moreover, he argues, if the appellant is eventually acquitted, there would be no basis whatever for a direction.  This last submission cannot be right.  The issues

in the criminal trial are quite different from those in the present proceeding, and an acquittal can have no impact on the correctness of the order made in the present case.

[51]     Neither do I accept the other submissions made by Mr Heaslip on this point. The fact the appellant may have completed a domestic violence programme some four years prior to the hearing in May 2008, does not justify the conclusion that he need not complete a second programme.   Indeed, the finding of the Family Court suggests that the appellant had learned little from his involvement in the first course. It is quite irrelevant that upon conviction in the criminal proceeding the appellant might face a rehabilitative order having much the same effect as the direction now in question, although no doubt a sentencing Judge would take into account what had occurred in the Family Court, if drawn to that Judge’s attention.

[52]     Section 32(1) provides that on making a protection order the Family Court must  direct  the  respondent  to  attend  a  specified  programme  unless  the  Court considers there is good reason for not making such a direction.  Mr Heaslip submits that the Judge ought to have given reasons for her decision to invoke the power to direct attendance at a specified programme.   I disagree.   A direction to attend a programme is a mandatory condition of a protection order in the absence of a good reason why it should not be included.   There is no need for reasons, although it would seem to be desirable for a Judge who decides not to give the direction, to explain why that course is justified in the special circumstances of the particular case.

[53]     In my opinion, the Judge’s decision to give a s 32(1) direction was perfectly understandable, and indeed inevitable, in all the circumstances of this case.

Result

[54]     None of the  grounds  relied upon by the  appellant  justifies  this  Court  in interfering with the orders made in the Family Court.  The appeal accordingly fails and is dismissed.

[55]     The respondent is entitled to costs.  Counsel may file memoranda if they are unable to agree as to quantum.

C J Allan J