SFB v BAS

[2023] NZHC 3444

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2023-412-10

[2023] NZHC 3444

BETWEEN

SFB

Appellant

AND

BAS

Respondent

Hearing:	17 October 2023
Appearances:	A C M Bligh for the Appellant J E Beck for the Respondent
Judgment:	15 December 2023

JUDGMENT OF HARLAND J

Introduction

[1]    The appellant appeals a decision of the Family Court which made a final protection order against him in favour of the respondent on 21 December 2022.1 The hearing before the Family Court dealt with the respondent’s application for a final protection order against the appellant but also dealt with an application for orders under the Care of Children Act 2004. At the conclusion of the evidence and after the parties had had an opportunity to discuss matters, the Court was invited to make a consented parenting order with respect to their child. That order was made by the Court on 28 November 2022.

[2]    The application for a final protection order was precipitated by an incident that occurred on 8 August 2021 when the appellant made certain comments to the Police

1      […]

SFB v BAS [2023] NZHC 3444 [15 December 2023]

which were then relayed to the respondent, resulting in her applying without notice for a protection order against him. A temporary protection order was made in her favour on 20 August 2021.

[3]The appeal is opposed by the respondent.

[4]    I have decided to dismiss the appeal. This judgment sets out my reasons for doing so.

Factual background

Before August 2021

[5]    The appellant and respondent commenced a de facto relationship in January 2016. Their child was born in mid-2018. On 25 March 2020, the parties separated following what the District Court Judge described as the respondent’s increasing concern about the appellant’s controlling and increasingly aggressive and erratic behaviour. This included an incident described in the judgment as a road-rage incident during which the respondent and the parties’ child were in the vehicle driven by the appellant.

[6]    Prior to their separation, the parties had agreed to sell their house in a small rural village in Otago pending their relocation back to Dunedin. The day before the COVID-19 lockdown commenced, the respondent told the appellant she wished to end the relationship. The appellant told her that he was in fact depressed and had been for the duration of the relationship, and that he suffered from severe anxiety. The appellant elected to leave the property and took only a few belongings with him.

[7]    The Police became involved immediately after the separation. The respondent had received a phone call from the appellant during which she considered he had been extremely aggressive towards her. He had said he could return to the house to do whatever he wished whenever he wanted.

[8]    At that time, the respondent’s father was staying with her at the property helping to get it ready to sell. While cleaning the property, they found documents from

a court proceeding involving the appellant and his former wife concerning their three children. The material obtained included reports from the Southern District Health Board and witness statements which suggested that the appellant had in the past threatened to kill someone. The documents they found also included Child, Youth and Family records and Judges minutes. Prior to this discovery, the respondent had not known that the appellant had previously been involved in court proceedings relating to his separation from his former wife. The documents also suggested that the appellant had been admitted to Wakari Hospital for mental health issues in the past. The discovery of these documents and their contents frightened the respondent when she considered them in relation to the appellant’s behaviour leading up to their separation and what he had said to her about his depression and anxiety issues.

[9]    On 20 April 2020, the respondent successfully applied without notice for an interim parenting order vesting the day to day care of the child in her and preserving supervised contact to the appellant. The respondent had also applied without notice for a temporary protection order. This was directed to proceed on notice.

[10]   The appellant was very distressed that his contact with the child was required to be supervised, because he claimed there was no justification for it. He was also aggrieved about what he considered to be the respondent’s egregious breach of his privacy by locating and using his medical information and private court documents, which she attached in support of her court applications. Various applications were made by him for this material to be ruled inadmissible. The appellant also made complaints to the Police about this, but the Police took no action in respect of them, despite the appellant considering the respondent should be prosecuted for disclosing material that was subject to suppression orders and for breaching his privacy.

[11]   Although the appellant’s contact with the child was initially supervised, agreement was reached on 10 July 2020 that from 6 September 2020 a week-about shared care arrangement would be implemented with changeovers occurring at a neutral venue. By this time, both parties were living at a distance from each other with the appellant living in the small rural village where they had formerly lived as a family (but I infer at a different address) and the respondent living with her parents in Dunedin. Although the parties’ relationship property had not been resolved, childcare

and other matters between them appeared to have settled down. I was advised that the application for a protection order made in April 2020 was withdrawn.

Incident on 23 May 2021

[12]   In early 2021, the respondent formed a new intimate relationship. She also wanted to progress selling the parties former home. This required the removal of some of the appellant’s property.

[13]   The appellant’s lawyer emailed the respondent’s lawyer to make arrangements for him to collect these items. An email from the respondent’s lawyer confirmed an arrangement for this to occur but unfortunately it included a threat that, if the appellant’s possessions were not packed up during the nominated weekend, they would be taken to the tip. This comment was ill-conceived and, at the time, the appellant was understandably aggrieved by it. However, the Family Court Judge noted that the appellant was still grieved about it before her some 18 months after the communication, which is not so understandable.

[14]   Arrangements had been made via the Police for a key to the property to be held with them and then provided to the appellant to facilitate the removal of items. Unfortunately, the Police constable who had agreed to assist was on leave the day that the parties had agreed the appellant’s items would be uplifted.

[15]   Shortly after this, on 23 May 2021, when the appellant was out walking with the child who was in his care at the time, he saw the respondent’s car at their former home. He was concerned that steps would be taken to remove his property and take it to the tip. He went to the property with a friend. There was an incident and confrontation between the appellant and the respondent’s new partner.

[16]   The respondent’s evidence in the Family Court was that the appellant presented aggressively to both her and her partner, with him coming very close to her partner with his fists up in his face, indicating he would punch him, and standing threateningly and close to him. She was frightened. Her partner told the appellant to “piss off”. The appellant denied any aggression by him, rather, he said the respondent’s partner

was the aggressor. The Family Court Judge noted that neither the partner nor the person accompanying the appellant gave evidence before her.

[17]   Both parties contacted the Police about this incident after it happened because the changeover of the child was to occur later that day. The appellant was adamant the Police advised him they had spoken with the respondent and her partner and that the partner had been told to remain in the vehicle at changeovers and that, if he got involved in the changeovers, the appellant was to call them. The respondent said she received no such advice from the Police.

[18]The changeover of the child later that day took place without incident.

[19]   After this incident and before the August incident, the appellant made complaints about the respondent to the Police on at least 11 occasions. The Judge noted that the complaints were about the respondent, her partner and others “winding the child up” so that, when the child got into the appellant’s car after changeovers, he was highly distressed, crying and difficult to console. The Police took no steps in relation to these complaints despite the appellant’s view that they ought to have.

[20]   Against that background, I now refer to the incident which precipitated the application for the protection order that is the subject of this appeal.

Incident on 8 August 2021

[21]   On 8 August 2021, the appellant was scheduled to have his week with the child. The respondent and her partner were present at the changeover. The appellant formed the view that the partner was filming the changeover. He was aggrieved by this and immediately rang the Police wanting them to intervene.

[22]The changeover took place without the involvement of the Police.

[23]   Later that night, the appellant rang the Police saying he was frustrated with them because he believed they should have taken the issues he referred to them when the changeover was occurring more seriously than they did. He also raised his dissatisfaction with their lack of response to his prior complaints about the

respondent’s behaviour, including his view that she was winding the child up on purpose before changeovers.

[24]   What the appellant said to the Police next forms the basis of the application for the protection order subsequently determined by the Judge in favour of the respondent. There are however two different versions of what was said; one from the appellant and the other recorded in a Police Family Violence report.

[25]In his affidavit of 9 September 2021, the appellant said:

18.   I phoned the Police later that day and tried to discuss the problems with the changeovers. This was probably the 12th time that I had contacted the Police in the last three months to try and get them to keep the peace when the changeovers occurred. I made 4 or 5 phone calls that day. I got an unsympathetic response although at least they did not hang up on me this time. In my frustration at their failure to take what I was saying seriously and their failure to consider remedying the upset the Applicant’s behaviours was causing, I tried to point out that the situation was really serious.

19.   I believe what I said was:

You guys would look pretty stupid if I put a knife through my ex-partners chest at a changeover.

The police said this was recorded so the exact words are available.

20.   I know that was a silly thing for me to say. I have no intention of stabbing the Applicant and what I said was not meant as a threat against the Applicant although I can understand the concern that it caused.

21.   I recognise that I have not handled the confrontation well and I hope to get some assistance as to how to deal with the situation from the course that the Court required me to attend.

[26]   The respondent relied on the Police Family Violence report in relation to the telephone call which contained the following comment:

Whilst on the call however [the appellant] made the following statement:

You guys are going to look pretty silly when I next go to pick up my [child] and then stab my ex-partner through her chest with a knife.

[27]   The report annexed to the respondent’s affidavit was incomplete. The complete report was filed by the lawyer for the child. It contains the following paragraph:

Lastly, and the most concerning comments that have been made were about the fact that he started to talk about the Ellen Livingstone murders that occurred in Dunedin in 2014. [The appellant] made no direct connection between his and Livingstone’s actions, however the mere fact that he introduced it into the conversation was strange and somewhat concerning. When probed further about why he bought that up he responded by saying “if he ever did that, he would want the police to come in and shoot him in the head”. This was the second time during the conversation that [the appellant] made the comment about Police shooting him in the head. [The appellant] was obviously challenged on all the above to which he downplayed and claimed his comments were getting taken out of context and he was simply throwing hypothetical situations out there.

[28]   The reference to the Livingstone murders relates to a tragic incident in 2014 where, following his separation and after which Mr Livingstone had been required to have only supervised contact with his two young children aged nine and six, he used a stolen shotgun to kill them and then himself.

[29]   The appellant’s response to his reference to the Livingstone murders in his affidavit before the Family Court was:

7. I did say to the Police that they are treating me like the guy who murdered his kids, but I’m not like that, but need help with the change overs. I did not tell the police that I believed that I was “crazy”.

[30]   The appellant further stated in his evidence before the Family Court that what the Police claimed in the report about his reference to the Livingstone murders was incorrect as he only raised it as a hypothetical situation. His concern was that the Police were treating him as if he was Mr Livingstone, which he was not.

[31]   The best evidence about the comments the appellant made to the Police would have been from the phone call itself. Counsel for the respondent acknowledged the call was recorded but did not provide a copy of the recording in evidence, but neither did the appellant issue a summons or notice to produce this evidence at the hearing in the Family Court.

[32]   The call the appellant made to the Police on this occasion lasted 51 minutes. The Judge summarised the material matters recorded by the Police constable in the call at para [77] of her judgment. She also noted in footnote 18 that no objection was taken at the hearing to the admission of the Police summary reports that had been placed in evidence by the previous lawyer for the child. The Judge noted that the calls amounted to hearsay statements which, even if there had been an objection to their admissibility as such, she would have admitted them pursuant to s 12A(4) of the Family Court Act 1980 because she considered they assisted her to determine material issues. The Judge also noted that, as the accuracy and content of the calls was contested, her task was to resolve issues of reliability.

Incidents between 9 and 20 August 2021

[33]   The Police spoke to the respondent on 9 August 2021 and explained the comments the appellant had made to them the previous night. A safety plan was put in place for the respondent and her family by the Police.

[34]   On 11 August 2021, the appellant again called the Police. This call lasted approximately 45 minutes and the Police summary of it was produced in evidence at the Family Court hearing. The Judge provided a summary of that call in para [79] of her judgment. The grievances the appellant had previously expressed to the Police about what he believed was their lack of response were further rehearsed by him. There was reference to him purportedly saying that he was pretty sure he was coming across as crazy. The Police constable’s attempts to offer productive solutions to the issues raised by the appellant were not well received.

[35]   The Police visited the appellant at his home on 12 August 2021 to talk about the interactions that had occurred over the previous five days. The child was present and was noted to appear happy and well cared for. The Police record, again produced in evidence in the Family Court, noted that the appellant’s demeanour was completely different when compared to their previous interactions with him over the preceding few days. The Judge referred to this in para [80] of her judgment. The appellant acknowledged he had “said some bad things over the past couple of days” and stated “it is as a result of his emotional state being up and down”. The appellant

acknowledged he needed to seek help with his mental health so he could handle situations better in the future, but he said he preferred to source that help himself.

[36]   On 20 August 2021, the respondent applied without notice for a protection order. A temporary protection order was made in her favour against the appellant. The appellant filed a defence to the application and on 9 September 2021 he applied to discharge the temporary protection order.

The Family Court judgment (review)

[37]   The appellant’s defence in the Family Court to the making of a final protection order was twofold. He first contended that the respondent could not establish that he had inflicted family violence against the respondent or their child because the comments he made to the Police were addressed to them and not to the appellant. Further, he submitted that the making of a final order was not necessary.

[38]   Unsurprisingly, given the amount of evidence before her, the Judge reserved her decision. The judgment she issued on 21 December 2022 comprised some 45 pages and 114 paragraphs. She outlined the legal principles that apply2 and traversed the evidence in detail, including the background matters I have referred to above.3 As part of her assessment of the facts, the Judge also referred to other instances where the appellant had made complaints about third parties.4

[39]   A key issue which the Judge was required to determine was whether the appellant’s actions amounted to psychological abuse by threatening the respondent or acting in an intimidatory fashion. The Judge found in favour of the respondent that the appellant had done so. In noting that this involved a risk assessment by her, the Judge referred to the respondent’s evidence that she remained fearful of the appellant, despite the time that had passed since August 2021 and she listed the reasons the respondent had for that at para [104] of her judgment. The Judge concluded that the respondent’s subjective view about her need for further protection was reasonably held and she found her to be a thoughtful and credible witness.

2      At paras [8]-[24].

3      At paras [25]-[90].

4      At paras [80]-[90].

[40]   The Judge then went on to assess the appellant’s character and disposition, his challenges with anxiety and whether he would continue to have issues with conflict in the future. She also assessed the appellant’s level of insight into the events that had occurred. The Judge concluded that the appellant remained deeply aggrieved about perceived wrongs he believed to have been effected against him by the respondent since their separation. The Judge concluded this sense of grievance was likely to continue in the future and that it had clouded his judgment, added to his personal difficulties dealing with conflict and his ability to self-regulate his emotions, and increased his anxieties. While noting that the appellant had completed the Stopping Violence Programme (with extensive added sessions) and that this was to his credit, the Judge did not consider the appellant had gained significant insight into the effects of his behaviour on the respondent.

[41]   When these matters were considered against what the Judge found to be the appellant’s disposition to think in a concrete way as to the rights or wrongs of others, and bearing in mind past behaviour, the Judge concluded that the appellant had not found a way since 2015 to regulate his emotions, which led to him exhibiting intimidating and frightening behaviours. When reaching this conclusion, the Judge referred to a threat made to another Judge in 2015, the road rage incident and the appellant’s attitude and complaint about third parties. She was satisfied that the respondent’s subjective need for ongoing protection was reasonably held and that the appellant could not and had not pointed to any countervailing features against the need for a final protection order.

The appeal

[42]   The appellant contends that the Family Court Judge erred in fact and in law in the following respects:

(a)  section 79(1) of the Act requires that the appellant must have inflicted family violence against the respondent before an order can be made;

(b)  there was no evidence upon which a finding could properly be made that the appellant had inflicted qualifying family violence on the respondent;

(c)  on a proper consideration of the facts, the appellant’s behaviour did not amount to family violence as defined in s 9 of the Act:

(i)the appellant made the relevant statement to the Police and not the respondent;

(ii)the Judge did not accept the evidence that the appellant gave as to his statement to the Police when the only direct evidence of what was said was that of the appellant, and that evidence should have been preferred to the written statements relied on by the respondent; and

(iii)there was no proper basis for the finding at [93] that the appellant “must have known that the police would have to advise her of his utterances and for her to take immediate protective action, which is exactly what they did”:

(1)that proposition was not put to the appellant, so he was not given the opportunity to comment or challenge it; and

(2)there was no direct evidence as to the action the Police would take in these circumstances.

[43]   The appellant asks for the appeal to be allowed and the protection order quashed.

[44]   As outlined above, the appeal is opposed in respect of all the grounds identified above.

Legal principles

[45]   The appeal against the making of a final protection order proceeds by way of a rehearing.5 The principles in Austin, Nichols & Co Inc v Stichting Lodestar apply. An appellate Court must form its own view about the merits of the case,6 but the appellant bears the onus of persuading it to reach a different conclusion from the

5      District Court Act 2016, s 127.

6      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].

conclusion reached by the trial court. The appellate court will take into account any particular advantages enjoyed by the trial court, given that a trial Judge is in the best position to assess the credibility and reliability of witnesses and evidence where viva voce evidence is called.7

The Family Violence Act 2018 - relevant provisions

[46]   The power to make protection orders is provided under s 79 of the Family Violence Act 2018 (Act), which states:

79   Requirements for making of protection order

The court may make a protection order if it is 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.

[47]The definition of “family violence” in s 9 of the Act is extensive. It provides:

9     Meaning of family violence

(1)   In this Act, 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.

(3)   Violence against a person includes a pattern of behaviour (done, for example, to isolate from family members or friends) that is made up of a number of acts that are all or any of physical abuse, sexual abuse, and psychological abuse, and that may have 1 or both of the following features:

7      Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30]-[31].

(a)it is coercive or controlling (because it is done against the person to coerce or control, or with the effect of coercing or controlling, the person):

(b)it causes the person, or may cause the person, cumulative harm.

…

(emphasis added)

[48]   The meaning of psychological abuse is outlined in s 11 of the Act. It includes threats of physical abuse8 and behaviour that does not involve actual or threatened physical abuse.9 Intimidation can also amount to psychological abuse.10 The examples of intimidation or harassment listed in s 11(1)(b)(i)-(iii) do not apply in this case but, as counsel for the appellant agreed, the definition in s 11 is not exhaustive.

[49]   As well, a single act may constitute abuse or a number of acts that form a pattern of behaviour may amount to abuse even if the acts, viewed in isolation, appear minor or trivial.11 When determining whether to make a protection order, the Court must also consider the applicant’s perception of the behaviour and effect of the behaviour on the applicant (the applicant being the person who applied for the protection order; here, the respondent).12

[50]   The standard of proof required when determining whether family violence has been inflicted upon an applicant (or a child of the applicant’s family, or both) is on the balance of probabilities.13 In determining whether there has been family violence, the evidence should be reviewed in totality and the combined effect of the alleged acts considered.14

Discussion

[51]   Counsel for the appellant submitted that for the appellant to have committed psychological abuse he must have:

8      Family Violence Act 2018, s 11(1)(a).

9      Section 11(4).

10     Section 11(1)(b).

11     Section 10.

12     Section 83(1).

13     Section s 171.

14     SN v MN [2017] NZCA 289, [2017] 3 NZLR 448, at [21].

(a)        intimidated the respondent by his comments to Police;

(b)       understood his comments amounted to intimidation of the respondent once she was told of them; and

(c)        known the Police would contact the respondent and tell her what he said.

[52]   The appellant’s case is that none of the three elements referred to were established on the evidence, whereas counsel for the respondent disputed that the second and third elements are required to make a finding of family violence.

[53]   Counsel for the appellant referred to the decision of the Court of Appeal in Dilley v R where it considered whether communications directed at a third party could constitute abuse against an applicant.15 In Dilley, the appellant was subject to a protection order, the protected persons being his former partner and their young son, when he messaged his former partner’s new partner over Facebook Messenger. The messages concerned the custody of their son and accused the appellant’s former partner of being promiscuous and a liar. The basis for the appeal was that the communications did not amount to a breach of the protection order because the messages were between the appellant and his former partner’s new partner and were not intended for her. The Court dismissed the appeal on the following basis:16

In this case Mr Dilley must have expected that his messages would be passed on; the recipient was A’s partner and the communication concerned custody of

K. A defendant may have reasonable excuse for breaching a protection order where he had no reason to believe that his words would reach or otherwise affect her, but this is not such a case.

[54]   I agree with counsel for the respondent that the context of Dilley and the present case are not the same. In Dilley, a domestic protection order had been made against the appellant and the standard conditions under s 90 of the Act, including a no- contact condition, applied. Whether contact with a third party can constitute abuse against a protected person is a question of fact and the content may be aimed at the protected person or at their relationship with the addressee.17 In this case, the appellant

15     Dilley v R [2018] NZCA 210, [2018] NZFLR 536.

16     Dilley v R, at [9].

17     Dilley v R, at [8].

is appealing a decision to make a final protection order. The focus must be on the appellant’s conduct, namely, whether it constitutes family violence in the form of intimidation aimed at the protected person (the respondent), not whether he knew the comments would be passed on to the respondent.

[55]   In any event, in my view, the appellant ought to have known the respondent would be made aware of his comments. He called the Police so that they would contact the respondent about the changeover. He would have therefore expected them to do so. It is likely the appellant’s comments were made without proper thought and perhaps impulsively. However, it cannot reasonably be claimed that he would not have known the contents of his conversation would be passed on to the respondent, especially the comments referring to stabbing her in the chest and the Livingstone murders. These comments, regardless of the appellant’s intentions, objectively raise cause for alarm. Moreover, as noted by counsel for the respondent, the appellant would have known from past experience that the Police would contact the respondent. The Police are responsible for protecting the public. They would not receive comments such as those made by the appellant and do nothing.

[56]   Similarly, I do not agree with counsel for the appellant’s submissions that the appellant did not understand his comments amounted to intimidation. The appellant claims he did not mean to threaten the respondent. His evidence was that he was frustrated about the changeover and did not want the respondent’s new partner to be there. However, the cause or motivation for abusive behaviour is irrelevant18 and proof of an intention to abuse is not required.19 Whether or not the respondent ought to have brought her partner to the changeover is also irrelevant as her conduct is not a relevant consideration.20 The focus must be on what was said.

[57]   Psychological abuse may take a variety of forms but it is behaviour that “typically plays on a victim’s mind and emotions”.21 In NV v Police, Gendall J held that writings, including a birthday card, sent to the complainant from prison constituted psychological abuse, despite the complainant not having opened and read

18     SN v MN, above n 14, at [28].

19     A v B [1998] NZFLR 783 at 10.

20     SN v MN, above n 14, at [24].

21     NV v Police [2007] NZFLR 160 at [15].

the contents of the communication.22 In other cases, psychological abuse has been determined to include behaviour designed to unsettle or worry another party and implicit or explicit threats can also amount to psychological abuse.23

[58]   The appellant’s evidence about what was said differs from that of the Police report. The Judge referred to this in her decision, and counsel for the appellant emphasised in written submissions that the appellant’s account of what he said was the only direct evidence provided. I acknowledge this, however, I agree with counsel for the respondent that the differences between these two statements are immaterial. Even though the appellant’s recollection of what he said contains “if”, in comparison to “when”, the core of the message remains the same, namely, it refers to causing harm to the respondent by stabbing her in the chest. Both versions convey a potential threat to the respondent’s safety. This finding is demonstrated by the Police response, the advice given to the respondent by the Family Harm team in Dunedin and the respondent’s own response.

[59]   The appellant’s position is that he wanted the Police to take the situation seriously and to take a more active role in the changeovers however, as outlined above, his motivation for making the comment is not relevant to the assessment the law requires. But, to be clear, I also consider that the comment is inherently inflammatory and raises concerns about the potential for the threat to be acted on. Ultimately, in my view, either version of the comment is sufficient to constitute intimidation and therefore amounts to psychological abuse.

[60]   But there is also the appellant’s reference to the Livingstone murders. The Police constable’s record of the phone conversation states that the appellant began talking about the Livingstone murders which occurred in Dunedin in 2014 and, when probed, he said if he ever did that he would want the Police to shoot him in the head. The Police constable recorded that the appellant did not make any direct connection between his and Mr Livingstone’s actions, but the appellant could not explain under cross-examination why he made this reference. I agree with the Judge’s finding that,

22     NV v Police, above n 21, at [18].

23     G v C (1997) 16 FRNZ 201 at 208.

“it was an utterly incongruous comment, clearly made for the purposes of intimidation”.24

[61]   I conclude that the appellant inflicted family violence against the respondent in the form of intimidation. The first limb of s 79(a) of the Act has been made out. The appellant has not persuaded me to reach a different conclusion from that reached by the Family Court Judge.

[62]   As there is no challenge to the second limb of the test in s 79 of the Act, the appeal must fail.

Costs

[63]The appellant is legally aided.

[64]   The respondent seeks an award of costs pursuant to r 20.19(1)(c) of the High Court Rules 2016 (the Rules) and s 45 of the Legal Services Act 2011 (the LSA). She submitted that the appellant is using court proceedings to further perpetuate his domestic violence against the respondent in the form of psychological and financial abuse. The respondent is not legally aided and her counsel submitted that the ongoing process is costing her both financially and emotionally.

[65]   Rule 20.19(1)(c) of the Rules provides that, after hearing an appeal, the Court may make an order it thinks just, including costs. Section 45 of the LSA provides:

45   Liability of aided person for costs

(1)   If an aided person receives legal aid for civil proceedings, that person’s liability under an order for costs made against him or her with respect to the proceedings must not exceed an amount (if any) that is reasonable for the aided person to pay having regard to all the circumstances, including the means of all the parties and their conduct in connection with the dispute.

(2)   No order for costs may be made against an aided person in a civil proceeding unless the court is satisfied that there are exceptional circumstances.

24 […] above n 1, at [84].

(3)   In determining whether there are exceptional circumstances under subsection (2), the court may take account of, but is not limited to, the following conduct by the aided person:

(a)any conduct that causes the other party to incur unnecessary cost:

(b)any failure to comply with the procedural rules and orders of the court:

(c)any misleading or deceitful conduct:

(d)any unreasonable pursuit of 1 or more issues on which the aided person fails:

(e)any unreasonable refusal to negotiate a settlement or participate in alternative dispute resolution:

(f)any other conduct that abuses the processes of the court.

(4)   Any order for costs made against the aided person must specify the amount that the person would have been ordered to pay if this section had not affected that person’s liability.

(5)   If, because of this section, no order for costs is made against the aided person, an order may be made specifying what order for costs would have been made against that person with respect to the proceedings if this section had not affected that person’s liability.

(6)   If an order for costs is made against a next friend or guardian ad litem of an aided person who is a minor or is mentally disordered, then—

(a)that next friend or guardian ad litem has the benefit of this section; and

(b)the means of the next friend or guardian ad litem are taken as being the means of the aided person.

(emphasis added)

[66]   Regarding the term “exceptional circumstances” in s 45(2) of the LSA, the Court of Appeal found such circumstances to be present in Smyth v Wadland, where Arnold J noted the appeal to be “wholly unarguable”.25 The appellant’s arguments focused on factual findings made by the Judge “which could not sensibly be contested”, the appellant’s conduct through all proceedings was “reprehensible” and counsel for the respondent wrote to legal aid services in warning that the appeal was unmeritorious.26 The appellant had four children in shared care, was on a disability

25     Smyth v Wadland (2009) 19 PRNZ 361 at [10].

26     Smyth v Wadland, at [5].

benefit and owned no assets other than family chattels and an old car.27 In light of these limited means, the appellant was ordered to pay $500 in costs (which would have totalled $6,400). The appeal was so lacking in merit, the Court noted its surprise that the appellant was granted legal aid to pursue it.28

[67]   In comparison, although I have concluded above that the appeal fails. The appeal, of itself, was not completely without merit. Arnold J in Smyth observed that “many appeals fail. Most, however, raise a point or points that are legitimately arguable”.29 Although the appellant has been unsuccessful in this appeal, this proceeding similarly cannot be described as one that “could not sensibly be contested”. Nor has he taken any steps to incur unnecessary cost or abused the court process. I am not persuaded to make an order for costs against the appellant because he is a legally aided person and there are no exceptional circumstances present that mean an order should be made.

Conclusion

[68]The appeal is dismissed. Costs are to fall where they lie.

Harland J

Solicitors:

Bligh Law, Dunedin

J Beck Law, Dunedin.

27 At [7].

28 At [14].

29 At [10].