Short v Short

[2021] NZHC 1874

TO PROTECT THE CHILD REFERRED TO IN THESE PROCEEDINGS, THE NAMES OF THE PARTIES HAVE BEEN ANONYMISED

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000279

[2021] NZHC 1874

BETWEEN

ELIZABETH SHORT

Appellant

AND

DANIEL SHORT

Respondent

Hearing:

1 February 2021

Appearances:

A M Corry and A M Lake for the Appellant Respondent in person

A J F Wilding QC, lawyer for the Child
C D Eason and J D N MacLeod, Amicus Curiae

Judgment:

23 July 2021

JUDGMENT OF NATION J

[1]    After a hearing on 26 February 2020, Judge Hunt in the Family Court found that the manner in which a father (Mr Short) was conducting proceedings under the Care of Children Act 2004 (COCA) was psychologically abusive of the mother.1 The Judge decided it was not necessary to make a protection order under the Family Violence Act 2018. Associated with his refusal of the protection order were directions that:

(a)   Mr Short would undertake not to make any further reference to certain specific matters concerning the mother;

1      Short v Short […].

SHORT v SHORT [2021] NZHC 1874 [23 July 2021]

(b)     Mr Short would participate in and complete an approved stopping violence programme; and

(c)   current and future COCA proceedings would be classified as complex and would be case managed by him.

[2]    The Judge also strongly encouraged Mr Short to withdraw an application he had made for the Family Court to admonish the mother for alleged breaches of consent orders for the mother to have day-to-day care of their child and for the father to have certain specified supervised contact with that child. The Judge anticipated, once two years had elapsed from the making of consent orders on 20 March 2018, Mr Short would be pursuing further COCA proceedings in the Family Court.

[3]    The mother, with support of Mr Wilding QC as counsel for the child, appealed the Judge’s refusal to make a protection order.

[4]    The issue on this appeal is whether the making of a protection order was the necessary and appropriate way to restrain or deter Mr Short from pursuing proceedings in a manner which would be psychologically abusive of the mother.

Background

[5]    The parties’ relationship began in October 2003. They married in June 2004. Their daughter was born in 2008. The parties separated in 2009 when the daughter was almost 18 months old.

[6]    From about 2010, the parties were involved in COCA and guardianship proceedings. In a minute of 17 January 2013, Judge Somerville recorded there had been ongoing disputes between the parents and the file concerning the daughter was “probably three inches thick”.

[7]    In a s 133 COCA report of 15 February 2012, an experienced psychologist and report writer for the Family Court said conflict between the parties had apparently escalated since 2010 and noted:

The conflict between the parents, as noted by Lawyer for Child, is extreme and continues to be exacerbated by ongoing allegations by correspondence, email and by way of affidavit, which have buffeted Lawyer for Child and continue to polarise both parents and their respective families. With indications that [the child] is being involved and affected by the conflict.

I am satisfied the reference there to correspondence, email and affidavits was largely as to communications and statements of Mr Short.

[8]    At the end of 2012, Mr Short advised the Court he would no longer be continuing with proceedings that were before the Court.

[9]    On 17 January 2013, Mr Short’s defence to proceedings brought by the mother was struck out. An order was made for the mother to have day-to-day care of the daughter. No contact was reserved for Mr Short. Neither party was to commence proceedings concerning the daughter without first obtaining the leave of the Family Court. Judge Somerville made that order “to avoid further conflict in the next two years”. Judge Somerville recorded Mr Short believed the only way of ending the conflict between him and the mother was for him to withdraw from the proceedings and have no further contact with the daughter.

[10]   On 23 April 2015, Mr Short filed COCA applications seeking contact with the daughter.

[11]   On 12 March 2018, there was a four and a half day hearing in the Family Court over COCA applications before Judge Clarkson.

[12]   On 20 March 2018, by consent, orders were made varying the parenting order made on 17 January 2013, to provide for the mother to have day-to-day care of the daughter and for Mr Short to have contact. This was on a staged basis with stage one being for supervised contact. Stage two was for unsupervised contact unless there was an adverse report from Mr Higgs (a psychologist who had earlier provided a report to the Court under s 133 COCA to the effect unsupervised contact was not recommended). Stage three would have allowed for Mr Short to have unsupervised holiday contact.

[13]   On 29 January 2019, Mr Higgs provided a report to the Court. It was adverse and recommended continuing contact should be supervised.

[14]   Between 14 September 2018 and 17 December 2019, Mr Short filed 10 applications for various COCA orders and/or for leave to file such applications.

[15]   On 18 December 2018, Judge McMeeken in the Family Court struck out an application dated 14 September 2018 filed by Mr Short on the ground it was an abuse of process.

[16]   In a minute of 18 June 2019, Judge McMeeken declined leave to Mr Short to commence new proceedings.

[17]   In a minute of 9 September 2019, Judge McMeeken refused leave to Mr Short to file a further application.

[18]   On 17 December 2019, the mother filed a without notice application for a protection order. The Judge directed it was to proceed on notice.

[19]   On 18 December 2019, Mr Short filed a without notice application for a warrant to enforce a parenting order.

[20]   On 19 December 2019, Mr Short filed an application to enforce a parenting order and for orders as to alleged contravention of a parenting order.

[21]   On 10 February 2020, the mother filed an application for orders as to contravention of parenting order.

[22]On 26 February 2020, there was a family violence hearing before Judge Hunt.

[23]   On 23 April 2020, Judge Hunt issued an interim injunction in the family violence proceedings.

[24]   On 3 June 2020, Judge Hunt issued a final decision refusing the application for a protection order and discharging a temporary protection order.

Judge’s decision

[25]   The Judge found Mr Short had psychologically abused the mother through the way he had conducted proceedings in the Family Court. In his decision of 23 April 2020, he determined the appropriate alternative to the making of a protection order would be for:2

(a)Mr Short to provide a signed undertaking not to engage in any conduct that might amount to a breach of a protection order but, in particular, not to make any repeated, direct and explicit reference to the matter of the mother’s history, as had been set out in counsel’s submissions, in any correspondence or communication with the mother, or communication/submissions/pleadings with her counsel, counsel for the child, any third party or the Court. That undertaking was to apply also to the content of any complaint regarding professionals;

(b)Mr Short to undertake to complete an approved non-violence programme as soon as one was available which he had indicated a willingness to do; and

(c)any application by Mr Short to be designated as complex and judicially managed so the mother’s exposure to inappropriate, irrelevant or objectionable material would be limited by judicial oversight and active case management.3 He explained that this, in combination with the strategies adopted by the mother’s own counsel and health professionals in intercepting or mitigating the impact of such materials, might prove a further restraint on Mr Short and a protective barrier for the mother.

[26]   The Judge said his decision was an interim one. If nothing was received from Mr Short confirming his willingness to proceed as the Judge required, a protection order would issue.

2 At [103].

3 At [107].

[27]   In a minute of 3 June 2020, the Judge noted Mr Short had provided an undertaking as required. A programme had been provided for Mr Short and he had undertaken to complete the programme. Mr Short had withdrawn several matters relating to non-compliance and/or admonishment. The application for a final protection order was struck out and the temporary order discharged.

[28]I refer to the Judge’s decisions in greater detail in the analysis below.

Approach to consideration of protection order applications

[29]   The enquiry required of the Court in considering applications for protection orders is as set out by the Court of Appeal as to an application under the earlier Domestic Violence Act 1995.

[30]   In SN v MN, the Court of Appeal said the enquiry required of the Court “is essentially of a fact-specific nature, calling for an evaluative exercise conducted within the logical framework provided by the Act”.4 The Court said the legislation is of:5

… a remedial nature: it is to be given a wide and lateral construction in achieving its purpose of eliminating abusive power and control in domestic relations through the mechanism of protection orders.

[31]The Court said:6

[20]   The first of the two sequential and related inquiries which the Court must undertake is into whether domestic violence has occurred within a domestic relationship. Violence relevant to this case includes physical or psychological abuse — neither term requires embellishment. The Court is only required to be satisfied that the respondent is using or has used domestic violence against the applicant. The threshold of satisfaction does not require proof to a particular standard. What is called for is the exercise of judgment by the Family Court based on all the evidence.

[21]   It follows that the inquiry is not to be determined by finding whether one or more acts passes a proven threshold. A single act may amount to domestic violence. Or a number of acts considered together may meet the same criterion. It is the combined effect that matters. Ultimately in exercising its judgment the Court must stand back and review the evidence in totality to decide whether it is satisfied that all incidents viewed together amount to domestic violence.

4      SN v MN [2017] NZCA 289, [2017] 3 NZLR 448 at [19].

5      At [18] (footnote omitted).

6      (Footnotes omitted).

[22]   The second stage, if the first is satisfied, is for the Court to inquire whether making an order is necessary for the applicant’s protection. The same threshold of satisfaction applies based on exercising judgment or making a judicial evaluation. Again the inquiry need not be overly refined. The greater and more persistent the degree of violence, the more likely it will be necessary to make an order.

[23]   It is unlikely a Court could rationally refuse to grant a protection order where the behaviour is such as to lead to reasonable fears for 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.

[24]It is also important to record that:

(a)   The inquiry is of course of a predictive nature but reliance on past behaviour is the most reliable guide to future conduct.

(b)   While some or all of the subject behaviour may appear to be minor or trivial when viewed in isolation or unlikely to recur, the Court is required to “consider whether the behaviour forms part of a pattern of behaviour in respect of which the applicant … need[s] protection”.

(c)   As noted, the purpose of a protection order is to ensure not only safety from the risk of future violence but also that the applicant actually feels safe — that is a reference to the effect of past domestic violence on the applicant.

(d)   The question is not which party promoted a given situation but whether the protection order is needed.

(e)   While the Court may take into account several factors when deciding whether the evidence displaces the apparent need to grant a protection order, once an applicant satisfies the Court of the existence of past violence and a reasonable subjective fear of future violence — described as shifting the evidential burden — such factors may do no more than guide the Court in any given situation. And factors identified as relevant in determining past cases do not reach the status of a statutory code or require formulaic application in other cases.

(f)   When conducting the inquiry into necessity it is not a question of weighing factors pointing to an order being necessary against those which operate to the contrary. Again, we repeat, it is an evaluative exercise to determine whether the protection order is necessary.

[32]In S v S, the Court of Appeal said:7

7      S v S [2008] NZCA 565, [2010] 2 NZLR 581, at [114].

A Court, when deciding whether a protection order is necessary, must decide whether the intervention of the State (including the imposition of criminal sanctions for breach) is justified, taking into account the purposes of the DV Act as set out in s 5 … the statutory criteria set out in s 14 of the DV Act and any other relevant factors.

Approach on appeal

[33]   The Judge’s determinations, both as to whether there had been family violence and whether a protection order was necessary, were evaluative decisions as to which the appeal proceeds as a rehearing.8 This Court must make its own assessment of the merits but with an appellant having the onus of showing the lower court had been wrong. This is not however an appeal where this Court needs to defer to the Family Court Judge over findings as to credibility. It had not been necessary for the Judge to make any such findings.

[34]   This was not an appeal against the exercise of a discretion. In S v S, the Court of Appeal held the Court’s decision as to whether there had been domestic violence was an evaluative decision in respect of which an appeal would proceed by way of rehearing.9 The decision as to whether a protection order was necessary involved the exercise of a discretion. In SN v MN, the Court of Appeal held that analysis had not survived the judgment of the Supreme Court in Kacem v Bashir.10

Submissions

[35]Through her counsel Ms Corry, the mother submitted:

(a)   Mr Short’s conduct in the Court proceedings was at the heart of the application for a protection order.

(b)     Mr Short is aggrieved at the terms of a final parenting order made on 20 March 2018 in respect of their daughter and had used the issue and conduct of multiple court applications under COCA to level accusations at the mother which were demeaning, denigrating and traumatising for her.

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

9      S v S, above n 7, at [67]-[69].

10     SN v MN, above n 4; Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.

(c)   The Judge was correct in determining Mr Short’s conduct in the proceedings was psychologically abusive and thus met the criteria of family violence, as defined in the Family Violence Act. In deciding there were alternative ways of protecting the mother from this abuse, the Judge did not correctly apply the test referred to by the Court of Appeal in SN v MN as to whether a protection order was necessary.11

(d)     The Judge had incorrectly identified the mother’s stated goals. It was submitted these goals were “not in fact to prevent [Mr Short] from filing his multiple documents as and when he might be permitted to do so under ordinary Family Court Rules” but to be prevented from:

1.ongoing and multiple court proceedings;

2.the particular content of court proceedings;

i.with multiple references to her being the victim of traumatic violence while a child and violence from a former partner; and

ii.constant denigration of [the mother] and attacks on her character in court proceedings;

3.the threat of future proceedings and continuing proceedings through court documents and via email; and

4.multiple complaints against professionals involved in the proceedings and with [the daughter] where none of these complaints had been upheld.

(e)   The Judge had referred to the mother having a poor understanding of what could be achieved by a protection order. He said the making of a protection order would be counterproductive in terms of what the mother wanted because it would likely result in further Court proceedings and fuel Mr Short’s longstanding sense of victimisation in the Court proceedings. The Judge had been wrong to weigh those matters in the balance because

11     SN v MN, above n 4.

that would be to allow potential breaches of the protection order to be a reason for refusing to make a protection order. The consequences of a protection order or a breach of it were not relevant considerations when considering whether a protection order was necessary.

(f)   In requiring Mr Short to undertake a stopping violence programme, the Judge had, in effect, acknowledged intervention was required to protect the mother from further psychological abuse. He had erred in thinking that attendance in such a programme would provide that protection. Mr Short previously had extensive involvement in such counselling but it had not led to any change in the way he conducted the proceedings.

(g)     There were a number of features of this case which distinguished it from the situation in N v S where the High Court had decided there were ways of providing protection for the mother which did not necessitate the making of a protection order.12

[36]   In summary, the mother said the Judge had been right to find the way in which Mr Short conducted proceedings was psychologically abusive but wrong to refuse to make a protection order given the evidence. She sought the granting of a protection order on terms that there was to be no reference to certain specified matters in court documents and that court documents were to be provided to the Police for the purpose of prosecution if there was a breach of that condition.

[37]   In detailed submissions for the child, Mr Wilding supported the mother’s appeal. It was clear he did this on the basis the making of a protection order would be in the interests of the daughter because Mr Short’s conduct with the mother indirectly and adversely impacts on her interests. Mr Wilding submitted:

(a)   The Judge erred in deciding that, if a protection order were to be made, it would not apply to the child. This must have meant her interests were not considered in the way the Family Violence Act required when deciding whether a protection order was necessary. The Judge’s conclusion ignored the child’s inevitable worry about possible further deterioration in her

12     N v S [2019] NZHC 2905.

mother’s mental health and separation from her which was one of the ways the mother was at risk from Mr Short’s psychological abuse. He referred to information which had been before the Family Court in connection with the COCA proceedings, namely that the child was at risk from the father through the way Mr Short had involved her in what was happening in the Court proceedings. He referred to the daughter feeling she was responsible for her mother’s distress and suffering because the proceedings, which caused the mother such distress, were over the extent of the contact Mr Short would have with the daughter.

(b)     If a protection order had been made, the Court could have authorised a safety programme for a child.13

(c)   The daughter was vulnerable because she is a child, she has been embroiled in longstanding conflict over her care while in the care of the mother and was having contact, albeit supervised, with Mr Short.

(d)     The way in which the Judge decided to deal with the risk of further family violence was unorthodox in that he had not sought the views of the mother or of counsel for the child. The way the Judge dealt with the risk was inconsistent with the Family Violence Act which was directed at decisive and effective responses to stop family violence and keep victims and children safe.

(e)   The Judge had been unduly concerned with the conduct being based partly on conduct in COCA proceedings. Weight was wrongly placed on the mother, her lawyer, her consultant psychiatrist and the Court reducing the mother’s exposure to the impact of future family violence.

(f)   The Judge had inadequate regard to the regime in the Family Violence Act for ensuring perpetrators of violence would benefit from the appropriate programmes to stop future violence. The Judge also had insufficient regard to the fact Mr Short had engaged in longstanding and recent family violence knowing it would inflict serious harm or have the effect of

13     Family Violence Act 2018, s 187(b).

inflicting serious harm on the mother and the child. There was limited ability for Mr Short to change. Past professional help and assertions he would change had proved ineffective.

(g)     In refusing to make a protection order, the Judge had insufficient regard to the deterrent effect of a protection order.

(h)     It was appropriate for the Police to have a role in determining whether there was a breach of a protection order because it was a way, through their involvement, the State would be accepting its responsibility to ensure there was no breach of a protection order.

(i)   He questioned the Family Court’s ability to prevent proceedings being used in a way that could be psychologically abusive, noting that the prohibition against either party filing further proceedings within two years had not deterred Mr Short from filing numerous applications for leave to begin such proceedings.

(j)   The Judge should not have assumed that, with there being communication just to him of documents filed in the proceedings, it would be possible for counsel to protect the child from being adversely affected by the content of what was in Mr Short’s documents. There would be a time, perhaps when she was 16 or 18, when she would be able to insist on seeing what was in those documents.

(k)     Mr Wilding submitted the Family Violence Act provides a means for the Court, through the making of a protection order, to provide a “bespoke” means of ensuring someone, who has been conducting himself in proceedings as Mr Short has, can change and will change so as to avoid a repetition of the psychological abuse which has provided grounds for the making of a protection order.

[38]   Mr Wilding submitted, there having been recent and serious family violence, a protection order was necessary.

[39]Mr Short was self-represented.

[40]   The character of his written submissions was consistent with much of the material he had filed in the Family Court in the longstanding proceedings there. His submissions began with allegations as to how, while they were together, the mother had responded to his position over certain matters. He then presented his view as to matters which occurred over a number of years, including his categorisation of the mother’s conduct when he was in a relationship with a new partner, and his perception of difficulties he faced in that relationship as a result of the mother’s conduct under the heading “how did [the mother] start this in 2009”. He presented his view of what had been the aftermath of the March 2018 hearing, and the orders that had been made by consent. As he put it, his anticipation then was:

Finally, it was over and as long as I grovelled to [the mother’s] abusive control and did nothing about it, it would only be a matter of time for normal contact with [the mother] no longer abusing [the child] to Lie etc, to prevent it, as had already been documented by Higgs and Weaver.14

[41]   Mr Short set out reasons why he considered he was justified in filing applications for leave to vary the COCA orders made by consent in March 2018. He referred to the circumstances of the mother being hospitalised and the daughter being put in the care of Cholmondeley Home.15 Mr Short explained:

It was not until the 5th time [the mother] was sectioned and unable to hide from me that she was housing [the child] with abused children and strangers, that I started making applications for a new parenting order based on this change in circumstances.

[42]   Mr Short said he had abided by the Judge’s direction not to mention in communications with any other party the events which the mother said were traumatising for Mr Short to confront her with on an ongoing basis. In relation to those matters, Mr Short submitted the Judge had been correct in referring to Mr Short’s belief that these matters were the driver for the mother not to want their child to have a father in her life, but the Judge had been wrong in saying there was communication over those issues when they had no clear relevance.16

14     Mr Higgs was the s 133 report writer. Mr Weaver had supervised Mr Short’s contact at various times.

15     A well regarded facility in Governors Bay near Christchurch providing respite care for children who are in need of such care due to stress or stresses that might exist in their home situations.

16     That was not what the Judge said, as will be apparent from Short v Short, above n 1, at [12]-[15].

[43]   Mr Short submitted the mother’s claim, that she had been psychologically abused in the way Mr Short had referred to these traumas, “shows beyond all doubt what her Guilt of abusing and Lying to have [the child] as her forced emotional Crutch and myself forever blocked from even having a seat at [the] parenting table is driving”. He then asserted he had been told of these traumatic events during the relationship to manipulate him into acting in particular ways she wanted while they were together, that is, going back to matters in the period they had been together between 2003 and 2009.

[44]   Mr Short then referred to various matters under the heading “things that [the mother] wants to blame and punish me for”.

[45]   He submitted, through pursuing this appeal in the High Court, the mother had initiated further proceedings in a way her psychiatrist had said would not be conducive to her healing and an improvement in her mental health.

[46]   Mr Short submitted the abuse the mother had complained of was situational, and the result of the mother having been convinced by “seasoned professionals, especially child lawyers” of things that never happened. He then made specific criticisms as to statements made by then counsel for the child Mr O’Donnell.17 He referred to what he asserted had been a false claim made by the mother’s counsel in the March 2018 hearing, what he said were false claims as to various matters made by the mother’s current counsel and false claims that he said Mr Wilding had made as to a particular matter.

[47]   Mr Short said he had provided confirmation that he had completed a stopping violence programme as required by the Judge.

[48]   In his oral submissions, Mr Short claimed he had obtained insight into how not to conduct himself in these proceedings in a way that could be considered abusive. He asserted the appeal was another step in the mother seeking to drive him away from their daughter. He said he does not have contact with the mother, which is how he prefers it to be.

17     Mr O’Donnell was counsel for the child in 2012 and 2013.

[49]Mr Eason was appointed as counsel to assist.

[50]   In a minute of 3 August 2020, van Bohemen J did not say how the Court expected Mr Eason to assist but noted that counsel for the child and for the mother had said there would be benefit in the appointment of counsel to assist to ensure there was a lawyer playing the role of contradictor to the appeal.

[51]   Mr Eason submitted, when these proceedings were before the Family Court, the focus of the application had been on the way Mr Short had conducted himself in the proceedings. The protection order was sought to ensure Mr Short conducted himself properly in those proceedings.

[52]   He submitted the Judge had to have proper regard to Mr Short’s right of access to justice through s 27 of the New Zealand Bill of Rights Act 1990. He submitted, for a person to be able to have access to the courts to seek justice, he must be able to file the documents as he sees fit. He accepted there can be limits on what is put in those documents to ensure there is no abuse of court proceedings. He submitted the Family Court has the ability to control what happens during proceedings to avoid proceedings being an abuse of the court or the sort of psychological abuse which the Judge found the mother had been subjected to.

[53]   Mr Eason submitted the making of a protection order would be a particularly blunt instrument to avoid the sort of psychological abuse which the mother has been a victim of. He submitted, if ultimately the mother considered there was a breach of a protection order in the way Mr Short was conducting himself in proceedings, the sanction as to that would potentially be prosecution where the Police would have to prove the alleged breach beyond reasonable doubt. In that regard, he noted Mr Short genuinely feels that the historical matters he had repeatedly referred to were part of what their dispute is all about and he wishes to be heard as to that.

[54]   Mr Eason submitted the Family Court was a specialist Court and thus the appropriate Court to control how proceedings could be conducted. He submitted the Judge’s underlying concern was to ensure Mr Short would have access to the Court so

he could be heard but also to ensure that, in pursuing proceedings in that Court, Mr Short would not do so in ways that would be psychologically abusive of the mother.

[55]   He noted Mr Short had completed the stopping violence course as required. Mr Short had filed further applications in the Family Court. The Judge was managing the conduct of those proceedings.

[56]   Mr Eason submitted the making of a protection order was not necessary or the appropriate way to provide the mother with protection against the psychological abuse which the Judge found she had been subjected to.

Analysis

Did the Judge err in the way he referred to the parties’ positions in the COCA proceedings?

[57]   It was not suggested there was any error in the Judge concluding that Mr Short had psychologically abused the mother.

[58]   In the introduction and background to his judgment, the Judge noted the parents:18

… are in a longstanding and ongoing litigious and highly contentious dispute about the appropriate care and contact arrangements which should be made for [the daughter]. This is at the heart of the issues between the parties including this application for a protection order.

[3]        [The mother] has experienced considerable trauma in her life. This has made her very vulnerable and she has required ongoing psychiatric treatment and support for her mental health including periods of hospitalisation for treatment.

[4]        Mr [Short’s] personality and his approach to [the mother] means that dealing with the care/contact arrangements for [the daughter] are not straightforward and marked by deep seated personal conflict and bitterness. A resolution is difficult to discern given the history, the issues, their personalities and the positions they have adopted.

[59]   The mother suggested there was error in this summary in that it suggested some equivalence where Mr Short’s abusive conduct was a reasonable response to the

18     Short v Short, above n 1.

mother’s conduct in relying upon a Court order for her to have day-to-day care, with the father having supervised contact to the daughter.

[60]   Mr Wilding, as counsel for the child, was also critical. He referred to an observation the Judge made later after the Judge had further summarised the background to the hearing over the protection order and said:19

This decision does not determine the merits of the parties’ representative positions in relation to the parenting dispute but focuses on the question of whether circumstances give rise to the legal and factual basis for a protection order. However, it is not possible to do that without referring to the drivers of the conflict and observing that the parties must fundamentally change their interactions and pattern of behaviour, however difficult that may be. The outcomes if they do not seem very bleak.

[61]   Mr Wilding submitted the mother had not engaged in family violence. He said it was unclear how the Judge assessed the drivers of conflict without hearing COCA proceedings or why. He also suggested the way the Judge had referred to this was an example of how the Judge had erred in the manner criticised by the Court of Appeal in SN v MN where that Court said “the cause of or motivation for abusive behaviour is irrelevant. The victims of domestic violence are not responsible for it” 20 and a comment that the respondent’s partner there “cannot be explained away as occurring in the context of a property dispute. Such factors are immaterial to the assessment of whether or not the domestic violence has in fact occurred”.21

[62]I reject those submissions.

[63]   The Judge had to decide whether there had been domestic violence by way of psychological abuse. In determining that issue, he had to consider Mr Short’s conduct and the context in which it occurred. He also had to consider how the mother had been affected by that conduct and how she would be affected by a continuation of it in the future.

19     Short v Short, above n 1, at [16].

20     SN v MN, above n 4, at [28].

21 At [29].

[64]   It was particularly pertinent for the Judge to refer to the background COCA disputes where the psychologically abusive behaviour the mother relied on related primarily to the way Mr Short had conducted himself in the COCA proceedings.

[65]   I also reject Mr Wilding’s criticism that the Judge could not have made observations as to the parties’ positions or how they had conducted themselves in the COCA proceedings without first determining those proceedings. The Judge had before him the voluminous documents from Family Court proceedings. Some 1,600 pages were also included on the case on appeal. Both in the Family Court and now on appeal, Judges have had to refer to that record to establish whether there was domestic violence by way of psychological abuse in the way contended for by the mother and whether the making of a protection order was necessary.

The background to the Judge’s determination that Mr Short had been psychologically abusive of the mother and the ways in which Mr Short’s conduct in the proceedings had been psychologically abusive

[66]   With respect, I consider the Judge’s summary of that background was admirably succinct and accurate. I accordingly set it out in full:22

[5]      The proceedings between the parties are voluminous. A significant point was reached in March 2018, when the parties participated in an extensive hearing occupying four and a half days. The hearing concluded with a consent memorandum approved by the Court but there was no comprehensive decision on the facts or issues by the Court. Appropriate reference has been made to aspects of that hearing during this hearing.

[6]      The scheme of the Court order provided for supervised contact. It set out a staged approach to increased and unsupervised contact for Mr [Short]. The pre-condition for the transition to unsupervised contact was a report from the specialist psychologist and s 133 report writer, Mr Higgs, that was “not adverse”. The report from Mr Higgs was regarded as adverse and stage 2 of the orders for unsupervised contact has not been implemented.

[7]      An illustration of why the report was adverse is an exchange reported by Mr Higgs between Mr [Short] and [the daughter], where Mr [Short] clearly and inappropriately engaged with his daughter about the Court proceedings:

Mr [Short]: “However I will just take you to events that I think you will get something out of it.”

[Daughter]: “don’t I get a say in anything.”

22     Short v Short, above n 1 (footnotes omitted).

Mr [Short]: “Well unfortunately you’ve said a lot of things to your lawyer and the court that match what [the mother] wanted you to say but did not match what you demonstrated.”

[8]Mr Higgs understandably concluded:

1.26. Mr [Short] has involved [the daughter] in the dispute between her parents by alleging the negative views she expressed during her interviews were influenced by her mother.

[9]      There are concerns about whether Mr [Short] possesses, or can develop, the necessary insight, self-restraint and child focus to give confidence that unsupervised and/or extended contact can occur without risk to [the daughter] of him repeating this sort of behaviour. The concern about his judgement and behaviour in relation to [the daughter] is not new. In 2011, the Court directed that Mr [Short] was not to undertake any genital examination of [the daughter] as a response to his behaviour then.

[10]   Mr [Short] has been dissatisfied with the outcome of the order and subsequent processes and has sought on several occasions to re-visit the care and contact arrangements through further applications to the Court. Section 139A Care of Children Act requires leave of the Court for substantially similar proceedings to be commenced within two years and to date, there have been rulings declining leave to revisit the issues of care and contact.

[11]   It is clear Mr [Short] intends to make a further application once the two- year limitation ends, either for shared care or at least substantially increased and unsupervised contact. These are goals which he is relentlessly intent on pursuing because he perceives it to be in his daughter’s best interests and equitable from his perspective of sharing in his daughter’s life. He expresses this in various ways, but consistently says:

All I want is for [my daughter] to have equal time with both parents getting the best that both her parents can give her.

[12]   In his submissions Mr [Short] seeks that determination of the protection order is deferred, pending the outcome of the proceedings he intends to file for increased contact/shared care. I do not accept that would be appropriate in terms of the legislative scheme or the situation between the parties. It leaves a significant issue unresolved which could be a source of further conflict. I consider a decision is necessary at this stage, as I have heard the evidence and the parties will then be able to have regard to this decision in terms of their future conduct. This is also relevant given the view I have formed about how this matter should be addressed.

[13]   Mr [Short] does not accept that there are any aspects of his parenting or conduct towards [the daughter], or [the mother], that call into question his parenting and therefore the suitability of a shared care arrangement and feels that he is not receiving a fair hearing. He believes that his concerns are not being addressed and he is being unfairly excluded from having the sort of contact he seeks and believes is appropriate. He also sees himself as a victim of what he perceives as [the mother’s] controlling behaviours. It is also clear that he has a strong sense of grievance regarding allegations that he thinks have been made against him, which in his view are without foundation. By repeating those views, I do not intend to give them weight or legitimise them,

but I acknowledge that they are his strongly held views and a key factor in the position the parties find themselves in.

[14]   This mix of views is the driver for his behaviour, his repeated applications and the objectionable content that he chooses to include in his applications and correspondence. It is all justified in his mind as being in pursuit of an objective he considers entirely reasonable and entirely consistent with [the daughter’s] best interests.

[15]   It is obvious that the parties are locked in deep seated and complex conflict which is adversely affecting both. It is this ongoing conflict that is at the heart of [the mother’s] application for a protection order. Mr [Short] considers he is justified in doing what he has done and believes that [the mother] is manipulating the situation and him, to exclude him from his daughter’s life. [The mother] is very concerned that the very behaviours that Mr [Short] thinks are necessary and justified in pursuit of his goals are evidence that he will behave in the same way with [the daughter] and that this will have an adverse effect on her. At times, Mr [Short’s] behaviour is overwhelming for [the mother] and exacerbates her vulnerabilities to the extent she has required hospital treatment. It is not the only cause, but it is a contributing factor. This creates a further issue where Mr [Short] believes [the daughter] should be in his care when [the mother] is not available but where other arrangements are in fact made.

[67]   Mr Short’s conduct in the proceedings has also been significantly influenced by his refusal to accept the opinions of appropriately qualified experts appointed to assist the Court and, with them in particular, a selective or incorrect interpretation or analysis of what they have said. In that regard too, I note there had been a pattern of Mr Short making multiple complaints about professionals involved in the proceedings and with the child.

Psychological abuse of the mother through Mr Short’s conduct of the proceedings

[68]The Judge set out his findings as to the psychological abuse as follows:

[84]      The Court process requires that each party put their respective case before the Court. There are a range of ways in which parties do so and allowance can be made for those parties who are self-represented and whose appreciation for procedure, rules of evidence and the appropriate way to express a point is limited.

[85]      Even making those allowances, Mr [Short] has crossed the line from legitimately putting his case, to conduct including direct correspondence intended only to denigrate and abuse, in the misguided belief that it better serves his objective. In his view, [the mother’s] behaviour justifies his own, even though in contrast he seems to accept that she is an important part of his daughter’s life as a caregiver and seeks only shared care.

[86]      Mr [Short] has known of the potential ramifications of repeated references to [the mother’s] trauma and has not been solely motivated by a desire to put his case, or at least to the extent he has, he has tried to achieve that by denigrating [the mother], placing stress and pressure on her. His sense of self-justification about that, based on his view of [the mother’s] behaviour towards him, is misplaced.

[87]      Many of Mr [Short’s] references to the trauma that [the mother] has experienced are gratuitous and disconnected from the point of the item of correspondence or pleading. The repetition is unnecessary, and I accept is psychologically abusive. An alternative response to this, could have been an application to strike out the pleadings or for other case management to be adopted, but that does not seem to have occurred. I do note the practical steps taken by counsel in relation to direct correspondence.

[88]      The relevance of these matters is a different issue and that is yet to be determined. …

[89]      The inevitability of further proceedings to determine the care of [the daughter] and ongoing care arrangements in any form, mean that that [the mother] is unlikely to be in a position where she does not have to respond to and engage with Mr [Short] in the future.

[90]      It is accepted that the protection order cannot be used for the collateral purpose of constraining Mr [Short] from legitimately advancing his case for care/contact before the Court, but Mr [Short] has gone beyond that at this point. It is only these proceedings and related behaviours that are at issue. There is no concern or basis for concern regarding physical violence.

[91]      There has been psychological violence by Mr [Short] in the context of the Court proceedings and correspondence relating to it. Mr [Short’s] motivation has been to square the ledger and the mistaken view that it will aid him to achieve his desired objective, which is to have shared or at least increased and unsupervised care of [the daughter].

[69]   I agree there has been conduct that is oppressive of the mother through, from time to time, Mr Short filing applications without merit or for coercive purposes. For instance, on 13 September 2016 Mr Short filed an application for a protection order. He said at the time he considered this was the best option for getting the outcome he wanted in COCA proceedings. On 14 September 2018, he filed a without notice application seeking additional holiday contact only six months after final consent orders had been made on 20 March 2018. On 18 December 2019, Judge McMeeken held this application was an abuse of court processes.

[70]   On 30 October 2018, Mr Short filed an application for day-to-day care. In those he also said “I ask that the court provide me with an order to enforce for use by

the police if necessary with people that I be-leave to have been conned by [the mother] and [the mother] … has picking [the child] up from Chummily home [sic]”.

[71]   In a decision of 4 December 2019, Judge Hunt declined leave to Mr Short to commence proceedings under COCA within two years of the parenting orders made on 20 March 2018.

[72]The Judge said:

[9]        The intention of s 139A was to limit the sort of incessant litigation that is a characteristic of this file. Acceptance by the parties of orders made either by consent or by determination of the Court and, in effect, a cessation of hostilities is an important part of trying to stabilise matters for children. Further having regard to the obligation generally to consider a child’s sense of time, a period of two years stability would generally be significant in a child’s life.

[10]      For good reason, therefore, the legislation requires a change of circumstance and for that change to have some materiality regarding the Court orders before they are revisited otherwise there is simply a prolonged and destructive conflict with no clear or definitive resolution. The consequential impact on the relationship between the parties and the children is potentially significant and adverse.

[73]   The Judge found the mother’s brief periods of hospitalisation because of mental health issues was not a material change of circumstances. He said:

[13] Mr [Short’s] assumption/expectation that during any period of care or treatment for [the mother] that he should be responsible for the care of his daughter are not, on the current orders well founded and ignore that the contact has not developed in the way he would like because of concerns that have emerged over the term of the orders and their operation. His recurring attacks on the current orders are in fact likely to have been counterproductive to his aims.

[74]   The Court of Appeal’s criticism in SN v MN was as to the way the Family Court Judge there had said the mother must take a degree of responsibility for an incident of abuse.23 Here, the Judge observed the psychologically abusive way in which Mr Short conducted himself in the proceedings did amount to family violence. Apart from observing that it occurred when Mr Short did not have the relationship he wanted with his daughter, there is no suggestion the mother was responsible for that conduct.

23     SN v MN, above n 4, at [28].

[75]   The Judge did equate the parties’ positions but only in the sense of saying that, unless their respective positions in the COCA proceedings changed, the outlook for them both was bleak. I do not consider, in saying that, the Judge was indicating that, by reason of the mother not agreeing to an equal sharing regime for the daughter, she was responsible in any way for the abusive way in which Mr Short conducted proceedings.

[76]   It seemed the mother was wanting Mr Short to have contact with the daughter provided there was an assurance it would be safe for the daughter. Mr Short was committed to achieving equal sharing and would likely carry on pursuing that end through court proceedings in the manner he had done previously if she did not agree to that outcome. For the mother, the prospect of this future was bleak.

[77]   On all the information before the Court, if Mr Short was determined to carry on with the proceedings so he could share equally the care of the daughter, then the prospect of his achieving that aim was also bleak.

[78]   The Judge was careful to say he was not determining what the outcome of continuing COCA proceedings would be. Nevertheless, I must determine on appeal whether a protection order was necessary. Relevant to that, I recognise that one way of protecting the mother from the psychological abuse she had been a victim of was potentially for the Family Court to determine the issues between the parties in the further proceedings which Mr Short was likely to file, for it to make whatever orders were appropriate in the best interests of the child and to then severely limit the ability of either party to file further applications in the Family Court.

[79]   The Judge noted counsel had anticipated a protection order would be used to regulate Mr Short’s conduct in any care of children proceedings. In that regard, he expressed a concern at the repeated assertion that the matters which the mother objected to were irrelevant to the substantive proceedings. The Judge considered they were relevant but it was the repetition of them that was objectionable to her, unnecessary and served no apparent legitimate purpose.

[80]   The Judge’s discussion as to this recognised that the parties had to be allowed to state their cases so the Court could determine the issues on the merits but they should not pursue their respective positions in an abusive way.

[81]   It is also possible that, through a final determination of COCA proceedings, the potential for continuing psychological abuse would be reduced through a Family Court Judge deciding it would not be in the daughter’s best interests for Mr Short to have continuing contact with her. Again, given both parents’ aspirations, that would also potentially be a bleak prospect for both parties but it is nevertheless a relevant consideration. Mr Short had himself decided in 2013 that, in the interests of his daughter, he would not have contact with her and did not do so for some two years.

[82]   Without objection from any party, the case on appeal included documents, but potentially not all documents, filed with the Family Court in proceedings after the Judge’s decision that was under appeal. On 27 May 2020, when two years had elapsed since the making of the consent orders in 2018, Mr Short filed an application for parenting orders. In support of that, he swore an affidavit on 27 May 2020 in which he revisited in detail events that he says occurred in years past and made a number of assertions intensely denigrating as far as the mother is concerned.

[83]    On 13 August 2020, Mr Short filed a notice of his wish to discontinue his application. Judge Hunt refused to accept that discontinuance. Consistent with an all or nothing approach, Mr Short filed a memorandum stating he had no alternative but to make an application to have day-to-day care of the daughter and for the mother to have supervised contact.

The relevance of any risk of physical abuse

[84]   Mr Wilding referred to Mr Short’s physical violence in 2007 in putting a plastic bag over the mother’s head as if attempting to suffocate her. One of the grounds of appeal in the mother’s notice of appeal was the Judge had failed to take into account or place sufficient weight on the existence of physical violence by way of suffocation.

[85]   The focus in these proceedings had however been on what Mr Wilding submitted was psychologically abusive written statements made in proceedings and in

communications to the mother’s lawyer or other professionals, and what Mr Wilding contended were proceedings filed post 20 March 2018, many of which he submitted lacked merit and/or were improperly conducted.

[86]   In the submissions before me, the mother’s case was based on the way Mr Short conducted himself in the proceedings in the Family Court and associated correspondence and emails. It was submitted a protection order was necessary “to protect [the mother] from the ongoing physical abuse Mr Short inflicts through court- related abuse and harassment”.

[87]   In evidence, the mother said the reason for her applying for a protection order was “basically because of the continual bombardment and personal attacks on me throughout the court process”.

[88]   In a second affidavit in the proceedings of 16 February 2020, the mother said “whilst I am fearful for my life because of [Mr Short’s] behaviour, it is not because I am afraid that [Mr Short] is going to physically hurt me. I am fearful for my life because of my mental health and how I struggle when [Mr Short] files applications, affidavits, memoranda and emails” that refer to traumatic events in her personal life. At another point in her affidavit, she said “I have not filed for a protection order because I am fearful that [Mr Short] is going to physically hurt me. I filed for a Protection Order due to the ongoing, relentless attacks that [Mr Short] makes towards me”.

[89]   Had it been likely there would be direct contact between Mr Short and the mother, there may well have been a risk of physical or psychological abuse through such direct contact. In the Court documents there was reference of Mr Short’s intensely aggressive communications with the professionals involved with the case, the psychologists who had provided reports for the Court and counsel for the child.

[90]   In a report for the Family Court, the supervisor attached a statement from the principal of the daughter’s primary school referring to an encounter he had with Mr Short at the end of a concert Mr Short and the daughter’s grandmother had attended. Mr Short took exception to the way the Principal directed the daughter to leave the

venue with other children in a way that prevented the daughter from seeing her grandmother at that point. Mr Short did not accept that the Principal was directing the children to keep moving for their safety. Mr Short asked the Principal if the Principal was saying the child was not safe with Mr Short. Another teacher had stood in, listened to what was happening and followed the Principal into the theatre to check on him. The Principal said he felt shaken after the conversation and was panicked driving home, thinking Mr Short was following him.

[91]   The risk of physical or psychological abuse through direct contact had however been reduced through the parties agreeing there would be no direct contact.

[92]   The mother accepted that any correspondence from Mr Short to her had to be with the mother’s lawyer so the lawyer could exercise her discretion about what was forwarded to the mother. The mother accepted there was some sort of protection for her there but said there should not need to be.

[93]   Earlier in the proceedings, Mr Short had at one point filed an application for a protection order against the mother. The mother’s counsel at the time submitted the application was without merit because there was no contact between the parties.

[94]   The incident of physical abuse that occurred in 2007 was historic. There was no error in the Judge treating that abuse as historic and discounting the risk of physical abuse against the mother as requiring a protection order.

Was there an error through the Judge failing to consider the way Mr Short’s psychological abuse affected the child?

[95]   Mr Wilding also suggested the Judge had erred in saying that, if he were to make a protection order, it would not have extended expressly to protection for the benefit of the child as a protected person. He suggested the Judge had thus erred in not considering how the daughter had been affected by Mr Short’s psychological abuse of the mother.

[96]I do not consider there was any error in the Judge’s reasoning in this regard.

[97]   The mother has stated in evidence that it was not her intention a protection order would apply as between Mr Short and his daughter. The mother had not suggested Mr Short was having contact with the daughter which required the making of a protection order. Her concern was because of the way Mr Short’s psychologically abusive conduct impacted adversely on the mother’s mental health, thereby impacting adversely on the care the mother was able to provide for the daughter. There was also evidence it had an adverse effect for the daughter in that, because the dispute between the parents was over what contact Mr Short should have with the daughter, the daughter felt she was in some way responsible for the way the mother’s mental health problems were aggravated through the manner in which Mr Short was conducting the COCA proceedings.

[98]   In his decision, the Judge was not dismissing Mr Wilding’s concerns for the daughter as being of no consequence. He said:24

… on the basis that [the daughter] is not at direct risk of violence and the indirect impact of any violence against her mother will be addressed by her mother being protected from conflict. The allegations of conduct which amounts to family violence is between Mr [Short] and [the mother] and any order should apply only as between them.

[43] Further I consider the contact orders under the Care of Children Act 2004 address the safe and appropriate way in which Mr [Short] is to have contact with his daughter.

[99]   There was evidence before the Court that, when having supervised contact, Mr Short had been too assertive in trying to involve his daughter in activities he thought she should be interested in rather than being sensitive to what she wanted to do. Mr Short had also involved his daughter in what was happening in the Court proceedings in a way she resented and which was potentially damaging for her.

[100]   In a s 133 report for the Family Court, Mr Higgs said the daughter, then almost 11, was articulate and able to present her views in a cohesive fashion. He referred to her expressing a concern that, without supervised access, Mr Short would probably talk about Court and her mother, which was something that really annoyed her. He

24     Short v Short, above n 1, at [42].

referred to the undated electronic interchange between the daughter and her father which the Judge repeated in his decision.25

[101]   It was with knowledge of such matters that it had been recommended by Mr Higgs and accepted by all parties that Mr Short’s contact with his daughter would be supervised.

[102]   There was no error in the Judge proceeding on the basis the daughter was not at risk of direct physical or psychological abuse in a way that could necessitate the making of a protection order and that her safety could be adequately provided for through the COCA proceedings.

[103]   The mother and Mr Wilding’s real argument is as to the Judge’s decision that a protection order was not necessary to protect the mother, and indirectly the child, from a continuation of the psychological abuse the mother had been subjected to through the way Mr Short conducted himself in the proceedings and in communications with the mother’s lawyer.

The requirement for Mr Short to attend a stopping violence programme

[104]   The Judge required Mr Short to participate in a stopping violence programme as a condition of refusing a protection order. Mr Wilding submitted the Judge erred in allowing that to influence his decision. He submitted the Judge had erred in not recognising that one of the benefits of making a protection order was that, with such an order, s 188 of the Family Violence Act enabled the Court to order that Mr Short participate in a particular counselling programme that would deal with the particular way he had been psychologically abusive of the mother.

[105]   That requirement of Mr Short was not, in my assessment, the primary basis on which the Judge declined to make a protection order. Had it been, participation in the programme would not have been sufficient reason to refuse the protection order. I accept, in the record in the proceedings, there was compelling information before the Court that targeted counselling of the sort Mr Wilding suggested would have been

25 See [66] above.

more appropriate. Furthermore, Mr Short had not been deterred from conducting these proceedings and mounting attacks on the mother in a way that was psychologically abusive of her.

[106]   In April 2015, Mr Short filed an application for orders allowing him to resume regular contact with his daughter.

[107]   In support of that application, he provided to the Court a letter dated 2 September 2013 from a counsellor and mental health worker. It confirmed he had been attending regular counselling sessions with that counsellor over a year. The counsellor said:

[Mr Short] self-referred to deal with the stress and anguish caused by acrimonious and ongoing custody issues with his ex-partner over his daughter. The situation has impacted adversely on his mental well-being, as well as his current relationship, and [Mr Short] has been looking [for] more constructive, less adversarial ways of dealing with the situation. Access to his daughter has been blocked or made difficult for a considerable period [of] time, and [Mr Short’s] distress and feeling of powerlessness has in the past resulted in some fairly bellicose and confrontational strategies. He understands now that these have not worked in his favour.

[108]   In a letter of 16 March 2015, the counsellor said Mr Short had continued to attend counselling with that health worker. The letter said:

Some time back he decided to stop pressing for regular parenting input because of the impact it was having on his mental health, his relationship at the time and the obvious negative affect that the acrimony between the parents was having on the child.

[109]   The counsellor said Mr Short had been exploring more constructive and less adversarial ways of getting his needs met. The counsellor said in the past 18 months Mr Short had been able to make a number of improvements in his approach and had become more insightful about the negative effect of some of his previous coping strategies.

[110]   Mr Wilding suggested to Mr Short that a specialist programme by an appropriate clinician was likely necessary to help him understand his conduct, the impact it has, and for Mr Short to learn techniques to stop it. Mr Short was reluctant to accept that saying:

How many courses do I need to go on while she does absolutely nothing and she has normal contact with my daughter which creates the situation and every person specialist I have been to has said it is perfectly normal for you to be angry and upset about that.

[111]   That did not mean the Judge’s insistence on Mr Short participating in and completing such a programme was in error. It was a tangible way of getting Mr Short to recognise that he must take responsibility for the way he conducted himself in the proceedings in the manner the Judge had determined was psychologically abusive of the mother and how the onus was on him to change his ways in this regard and take responsibility for the consequences if he did not do so.

Determination of the issues between the parties to achieve finality in the proceedings and bring them to an end

[112]   In his decision, the Judge was careful to ensure that the parties would be able to put before the Court in anticipated COCA proceedings all information which could reasonably be relevant to the issues for determination in such proceedings. In ensuring he would case manage future proceedings and in refusing to allow Mr Short to discontinue the proceedings, I am satisfied the Judge considered that one way of reducing the risk to the mother of psychological abuse through continuing proceedings would be to properly determine such proceedings and to then limit the potential for the parties to be involved in further litigation.

[113]   Judicial oversight of the proceedings in the Family Court is a means of minimising psychological abuse.

[114]   I also consider the making of a protection order, with the potential for the sanctions that could flow from that, was not necessary given the Family Court’s power to avoid proceedings being brought or conducted vexatiously.

[115]   Through the Family Court Rules, a Judge can classify as a complex case proceedings before the Court where a Judge is satisfied the proceedings require a greater degree of judicial oversight than is ordinarily provided in proceedings under

the Act. One of the situations Parliament recognised could require a greater degree of judicial oversight than is ordinarily provided was where the:26

… the personalities or behaviour of the parties, or any of the parties, indicate that there may be a serious risk to the physical or psychological safety or well- being of any child involved in the case.

[116]   The purpose of the Family Court Rules is to make it possible for proceedings in the Family Court to be dealt with:

(a)   as fairly, inexpensively, simply, and speedily as is consistent with justice;

…

(c) in harmony with the purpose and spirit of the family law acts under which the proceedings arise.

[117]Relevantly, the purpose of COCA is to:27

(a)   promote children’s welfare and best interests, and facilitate their development, by helping to ensure that appropriate arrangements are in place for their guardianship and care

[118]   Rule 16 of the Family Court Rules permits the Judge presiding over the court to, at any time, give any directions the Judge thinks proper for regulating the court’s business.

[119]   It is not in the interests of this child for the Family Court to permit either party to include in affidavits in proceedings under COCA expressions of opinion or argument that are denigrating and psychologically abusive of the other parent.

[120]   Rule 158 says that every affidavit “must be limited to any matters that would be admissible if the deponent were giving evidence orally at the hearing”,28 and, must, if it is an affidavit in reply, be limited strictly to matters in reply.

[121]   In proceedings under COCA, evidence can be admitted although it would not be admissible in other proceedings but it is well established that does not require the court to allow the admission of any evidence. It is open to a Judge to declare non-

26     Family Court Rules 2002, s 416UA(2)(b).

27     Care of Children Act 2004, s 3(1)(a).

28     Rule 158(1)(d).

expert evidence by way of opinion or evidence that is by way of submission or needlessly argumentative inadmissible.

[122]   Family Court Rules expressly states the court hearing proceeding may refuse to read an affidavit that:29

(i)    unnecessarily sets forth any argumentative matter or copies of, or extracts from, documents; or

(ii)   is an affidavit in reply but introduces new matter.

[123]Rule 416Q states:

416Q Restriction on further evidence being filed

A party may not, after filing an initial affidavit in support (whether with an application or with a notice of response), file a further affidavit of evidence except—

(a)   as directed by a Judge; or

(b)   with the leave of a Judge; or

(c)   where the party is seeking, under rule 47 (as applied by rule 416N), further evidence or an admission.

[124]   Mr Short has filed numerous memoranda presenting arguments in a manner this is unnecessarily denigrating of the mother in ways that would not be permitted if his statements were in affidavits. A Judge in the Family Court would be able to direct that he must cease filing such memoranda and direct that he will strike out or refuse to read parts of such memoranda which are objectionable in this way.

[125]   The Judge observed, in the submissions of counsel for the mother, it was anticipated that a protection order would be used to regulate Mr Short’s conduct in any COCA proceedings, at least in part.

[126]   He noted Mr Wilding’s submissions supported a protection order on the basis the child’s best interests lay in her main caregiver being protected. He noted Mr Wilding had identified a number of provisions in COCA in which Parliament had

29     Rule 158(2).

recognised the proceedings might be improperly used or conducted and so adversely impact on others, including children, in ways the court ought to prevent.30 As to that, he said the provisions referred to by Mr Wilding illustrate the point that the court has powers to regulate the conduct of proceedings and ensure they are pursued for legitimate purposes.

[127]   As Mr Wilding had referred to and as the Judge had noted through ss 139A, 140 and 141 of COCA, Parliament had recognised that proceedings under that Act could be conducted improperly or vexatiously but enabled the Court to make directions to prevent that happening.

[128]   Section 139A limits the ability of a party to file a proceeding without leave of the Court if that proceeding is substantially similar to earlier proceedings and is commenced less than two years after the final direction order was given in the previous proceeding.

[129]Section 140 gives the Court the power to dismiss proceedings if satisfied:

(a)   that the proceedings relate to a specified child, and that the continuation of the proceedings is, in the particular circumstances, clearly contrary to the welfare and best interests of the child; or

(b)   that the proceedings are frivolous or vexatious or an abuse of the procedure of the court.

[130]   Section 141(1)(a) permits the Family Court to order that a person may commence proceedings only with leave of the Court where the Court is satisfied the “person has persistently instituted vexatious proceedings” under the Act or under COCA.

30     Care of Children Act, ss 139A, 140 and 141.

[131]   In Brogden v Attorney-General, the Court of Appeal discussed the rationale for the High Court’s jurisdiction to declare a person a vexatious litigant and, through that, to prevent a person from conducting proceedings in a vexatious manner.31 The Court of Appeal stated that whether or not a person has instituted vexatious proceedings:32

… will not depend merely on the number of them but, just as importantly, on their character, their lack of any reasonable ground and the way in which they have been conducted.

[132]   The Court of Appeal said that a court, considering whether or not to declare a person a vexatious litigant:33

… may also take into account the development of a pattern of behaviour involving a failure to accept an inability in law to further challenge decisions in respect of which the appeal process has been exhausted, or attacking a range of defendants drawn into the widening circle of litigation solely because of an association with a defendant against whom a prior proceeding has failed.

[133]The Court said:

[23] Where an order is made under s88A [of the Judicature Act 1908] the litigant’s access to the Courts is not denied, but the High Court is able to act as a gatekeeper or supervisor to ensure that the processes of the Courts are not abused. Where the litigant satisfies a High Court Judge that there is a prima facie ground for the proceeding, leave may be granted. The Court is given the power to impose conditions which may be a means of ensuring that the litigant pursues the proceeding in a proper manner. The interests of the litigant and the intended defendant, and the public interest in the proper administration of justice can, by way of these controls, be appropriately balanced. Repetition of the litigant’s vexatious use of legal proceedings can be prevented. Section 88A is thus a reasonable limitation upon the right of access to the Courts which the litigant has been found to be abusing. The relevant considerations in any particular case, including rights guaranteed to a litigant under s27 of the Bill of Rights, can by this means be weighed and accommodated.

[134]   In discussing the vexatious litigant jurisdiction, the Court of Appeal referred to the fundamental constitutional importance of the right of access to the courts. They said “[r]ecognition of that value does, however, need to be balanced against the desirability of freeing defendants from the very considerable burden of groundless litigation”.34

31     Brogden v Attorney-General [2001] NZAR 809 (CA).

32 At [21].

33 At [21].

34 At [20].

[135]   That judgment thus recognises that a litigant can be involved in a pattern of conduct through the way they involve themselves in court proceedings. It recognises that such conduct may create a considerable burden for another party to the litigation. It would be consistent with those observations for a Judge to find that the way in which a party conducts themselves in court proceedings could amount to psychological abuse so as to constitute family violence in terms of the Family Violence Act.

[136]   In Attorney-General v Siemer, a full High Court discussed the vexatious litigant jurisdiction. Quoting Attorney-General v Jones, their Honours said one reason for restricting a person’s right to begin or continue proceedings was that “the opponents who are harassed by the worry and expense of vexatious litigation are entitled to protection”.35

[137]   Through the legislative provisions I have referred to, the Family Court has the power to prevent an abuse of proceedings and the psychological abuse of another party through the way proceedings are conducted in the same way as both the Court of Appeal and the High Court have recognised courts would be able to do through declaring someone a vexatious litigant.

[138]   The oversight which the mother and Mr Wilding would want the Police to exercise over how proceedings under COCA are conducted by Mr Short is the sort of oversight which, more appropriately, should be exercised by the Family Court.

[139]   The Judge identified the difficulty that courts would face in identifying just how the nature or content of documents might be regarded as improper or abusive, where it was accepted it would not be possible to use a protection order to restrain a father from filing proceedings which, by law, he was entitled to do. There would be particular issues as to the relevance of information where the parties have conflicting but genuinely held views as to that.

[140]   As an example of that, the Judge referred to the mother’s belief that, in COCA proceedings, it would not be relevant or proper for Mr Short to refer to the implications of periodic hospitalisation for the mother or the suitability or otherwise of alternative arrangements that might have to be made at such times for the daughter’s care. Mr

35     Attorney-General v Siemer [2014] NZHC 859 at [51], quoting Attorney-General v Jones [1990] 1 WLR 859 (CA) at 865.

Short could consider those matters a relevant consideration where he would be submitting that he should be considered as an alternative caregiver during those periods.

[141]   The Judge was concerned there would thus be uncertainty as to just what conduct on the part of Mr Short would be prohibited through the making of a protection order. The Judge considered this an important consideration “because the implications of a protection order are serious, with breaches giving rise to potential prosecution and conviction, including the risk of imprisonment”.36

[142]The Judge said:

[97] A consideration of necessity and the evaluation of the views of [the mother] can take account [of] the serious implications of a protection order and the actions which are of concern, to answer whether the sanction of an order is necessary to stop that behaviour. It will not always be the case that there are alternatives available to curb the behaviour complained of but, where there is such an option, I consider it appropriate to reflect on that in determining whether a protection order is necessary.

[143]   For an example of the way the High Court, in the particular circumstances of a case, had decided the risk of the family violence a mother had been concerned about could be dealt with in ways alternative to the making of a protection order, the Judge referred to a judgment of the High Court in N v S.37 The Judge concluded:

[100] I have come to the view in this case, that there is a combination of matters that might provide a viable alternative to a protection order and ultimately be more effective in achieving [the mother’s] stated goals of minimising the trauma of ongoing court processes and ensuring that where they do occur, they are conducted appropriately.

[144]In explaining why and how he had reached that conclusion, the Judge added:38

[101]    I am not declining to make a protection order merely because of the existence of care and contact proceedings, which would contravene s 84 Family Violence Act. The High Court noted that the equivalent of s 84 under the Domestic Violence Act, underscored the emphasis on granting protection orders in appropriate cases rather than attempting to achieve a similar outcome through the making of other orders, including parenting orders. This requires that a protection order to be considered as a stand-alone application, even where it was heard in conjunction with other applications.

36     Short v Short, above n 1, at [96].

37     N v S, above n 12.

38     (Footnote omitted).

[102]    The conduct complained of has largely arisen in the context of the Care of Children Act proceedings and I have concerns about how a protection order might operate in those proceedings. However, I would only refuse to grant a protection order if I felt assured that an alternative approach under these proceedings would mean it is not necessary. As will become obvious, I have included a direction that other proceedings are to be judicially case managed but that is ancillary to the main requirements in these proceedings.

[145]   The Judge considered a combination of responses bespoke to this particular case might provide a viable alternative. In ultimately declining to make a protection order, he decided the combination of measures I have already referred to did provide such a viable alternative.

[146]   The Judge had correctly noted that a protection order was sought to try and regulate the way in which Mr Short conducted proceedings in the Family Court. The Judge had, in my view, properly observed that the making of a protection order could have a very real prospect of a counterproductive result where there would be more court hearings and processes related to allegations of breach of protection order and challenges as to that. He fairly observed that the making of a protection order would likely fuel Mr Short’s sense that he is being treated unfairly.

[147]   The Judge did not say that a protection order should be refused because Mr Short would consider it unfair. He was not saying that a protection order should be refused because of the potential for Mr Short to breach such an order. The Judge was simply noting, with the particular purpose for the making of the protection order in this case, there was a risk that purpose would not be achieved through the making of a protection order because there could well be further litigation to establish whether or not a breach had occurred.

[148]The Judge said:

[32] The conduct prohibited by the protection order must be clear, particularly given the criminal consequences of a breach. In simple terms it must be plain to Mr [Short] that certain behaviours will amount to a breach of a protection order if he persists. The lawful pursuit of his objectives as authorised by statutory processes, cannot be arbitrarily, unreasonably or unfairly constrained. One of the issues for consideration in that regard, is whether there are other means by which the desired purpose of the protection order can be achieved.

[149]I do not consider there was any error in the Judge’s reasoning in this regard.

[150]   The sanction for the breach of a protection order would also involve a Judge in criminal proceedings having to determine whether proceedings in the Family Court had been conducted in a manner so as to constitute a breach of the protection order. That judgment would best be made by the Judge sitting in that court of specialist jurisdiction, with the detailed knowledge of all that has happened in the proceedings. The Judge, with carriage of the file for case management purposes, would be best placed to have that knowledge.

[151]In SN v MN, the Court of Appeal said:39

[23] It is unlikely a Court could rationally refuse to grant a protection order where the behaviour is such as to lead to reasonable fears for 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.

[152]   This is an unusual case. The mother, through her counsel, accepted that the proposition that the protection order should be used to control the way in which a party conducts proceedings which they are entitled by legislation to bring is a “novel” one. I consider the Judge here did carefully evaluate, in all the circumstances of this case, whether a protection order was necessary as the Court of Appeal in SN v MN had indicated he was required to do.

[153]   I consider that a protection order was unnecessary because the appropriate means of protecting the mother from the psychological abuse she had suffered and which she feared would continue was through the Family Court Judge managing the Court proceedings in the way he had indicated he intended to do.

The protection for the mother through Mr Short’s documents and communications having to go initially to her counsel

[154]   Coupled with the protection the Family Court can provide for the mother through its oversight of the proceedings, all Mr Short’s communications, whether through documents filed in Court or independently of that, would initially be with the mother’s lawyer. It could be expected the lawyer would screen those communications and would ensure they were conveyed to the mother only to the extent counsel considered was necessary to deal with the issue at hand. That arrangement also

39     SN v MN, above n 4 (footnotes omitted).

ensures that, if the mother is to be advised of the contents of any communication, it can be done with counsel mitigating the harmful effect of any communication through the reassurance and explanations counsel will be able to provide as to how they will respond, if at all, to the communication.

[155]   Mr Wilding is also, in a similar way, able to limit the child’s exposure to what Mr Short might say in documents Mr Short files with the Family Court.

Conclusion as to whether a protection order is necessary

[156]   In SN v MN, the Court of Appeal held that, at the second stage of its enquiry, the threshold of satisfaction as to necessity must be “based on exercising judgment or making a judicial evaluation”.40 The Court did not say that the necessity for a protection order will always follow from the finding made at the first stage.

[157]   I consider, faced with a most difficult case, Judge Hunt assessed all the circumstances as he had to. I do not find there was any error in his assessment or the conclusion he reached. The mother had undoubtedly suffered psychological abuse through Mr Short’s conduct in the longstanding proceedings in the Family Court. With the directions the Judge made and his considerable commitment to the case, there was no error in his deciding that the making of a protection order was not the necessary or appropriate way to protect the mother from the psychological abuse.

Result

[158]The mother’s appeal is dismissed.

Solicitors:

A M Corry, Barrister, Christchurch A M Lake, Barrister, Christchurch

A J F Wilding QC, Barrister, Christchurch C D Eason, Barrister, Christchurch

Copy to:
Mr Short, Respondent.

40 At [22].