SN v MN
[2016] NZHC 566
•5 April 2016
NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-754 [2016] NZHC 566
BETWEEN SN
Appellant
AND
MN Respondent
Hearing: 13 October 2015 Appearances:
M J McCartney QC for Appellant
V A Crawshaw and H G Holmes for RespondentJudgment:
5 April 2016
JUDGMENT OF M PETERS J
This judgment was delivered by Justice M Peters on 5 April 2016 at 11.30 am pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ...................................
Solicitors: Rob Webber & Associates, Auckland
Sean Kelly Lawyers, Auckland
Counsel: M J McCartney QC, Auckland
V A Crawshaw, Auckland
SN v MN [2016] NZHC 566 [5 April 2016]
Introduction
[1] Following a defended hearing in the Family Court, Judge D A Burns declined an application by the Appellant, SN, to make a final protection order against the Respondent, MN.1 A temporary protection order, which had been in effect until that time, was discharged accordingly. SN appeals against that decision.2
Background
[2] MN and SN began a de facto relationship in the late 1980s and married in
1994. There is some dispute as to when precisely the marriage ended but it is clear in any event that it had ended by January 2013. Despite that, the parties continued to live in the family home for some months until MN moved out in about late April
2013. The parties subsequently agreed that MN would not visit the family home but could have access to the garage on 48 hours notice.
[3] In March 2014, and by consent, an exclusive occupation order was made in SN’s favour under the Property (Relationships) Act 1976 (“PRA”).3 After the occupation order came into effect a dispute arose as to whether MN retained his right to have access to the garage. Following a series of unannounced visits, in May 2014
SN obtained a temporary protection order.4 The question of whether to make that
order final came before the Judge in February 2015.
Family Court decision
[4] Section 14(1) Domestic Violence Act 1995 (“Act”) provides that the Family
Court may make a protection order if satisfied that:
(a) the respondent is using, or has used, domestic violence against the
applicant, or a child of the applicant’s family, or both; and
(b) the making of an order is necessary for the protection of the
applicant, or a child of the applicant’s family, or both.
[5] Domestic violence is defined in s 3 of the Act, which provides:
1 N v N [2015] NZFC 1746.
2 Pursuant to s 91 Domestic Violence Act 1995.
3 Sealed Order for Occupation dated 3 March 2014.
4 Without Notice Application for Temporary Protection Order dated 15 May 2015.
3 Meaning of domestic violence
(1) In this Act, domestic violence, in relation to any person, means violence against that person by any other person with whom that person is, or has been, in a domestic relationship.
(2) In this section, violence means—
(a) physical abuse: (b) ...
(c) psychological abuse, including, but not limited to,—
(i) intimidation: (ii) harassment: (iii) ...
(3) ...
(4) Without limiting subsection (2),—
(a) a single act may amount to abuse for the purposes of that subsection:
(b) a number of acts that form part of a pattern of behaviour may amount to abuse for that purpose, even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial.
(5) Behaviour may be psychological abuse for the purposes of subsection (2)(c) which does not involve actual or threatened physical or sexual abuse.
[6] SN alleged that MN had used domestic violence on several occasions. The Judge found that MN had done so on one occasion in August 2013. That episode consisted of MN coming to the home, shouting at SN and abusing her with derogatory language. The Judge found that MN’s behaviour amounted to psychological abuse within the meaning of s 3(2)(c) of the Act and, as such, was domestic violence. The Judge was not satisfied that MN had used domestic violence on other occasions alleged by SN.
[7] The Judge then considered whether the making of an order was necessary for the purposes of s 14(1)(b) of the Act. The Judge determined that it was not. Given that determination, the Judge had no jurisdiction to make the order final.
Application for recall
[8] Subsequently, counsel for SN, Ms McCartney QC, applied to the Judge to recall his decision on the ground that the entire sequence of some text messages on which SN had been cross-examined had not been before the Court.5 Although the Judge granted the application for recall, he did not consider that the additional text messages affected the decision he had reached.
Grounds of appeal
[9] SN challenges the Judge’s determinations under each of s 14(1)(a) and (b).6
[10] The Judge’s factual finding on whether domestic violence had been used is subject to the principles set out in Austin, Nichols & Co Inc v Stichting Lodestar,7 meaning that I must come to my own view on the evidence but bearing in mind any advantage that the Judge had in seeing and hearing the witnesses at first instance.8
[11] The decision required of the Judge under s14(1)(b) was whether an order were necessary. An appeal against that decision constitutes an appeal against an exercise of discretion.9 Accordingly, to succeed on appeal, SN is required to establish that the Judge made an error of law or principle, failed to consider some relevant matter, took into account some irrelevant matter, or made a decision that was plainly wrong.10
Did the Judge err in his findings on whether MN had used domestic violence?
[12] As I have said, the Judge found that SN had established one instance of domestic violence, that being MN’s conduct at the family home in August 2013.
[13] Counsel for SN submits that the Judge erred in finding that other allegations by SN of domestic violence were not established on the evidence. The violence was
said to comprise physical abuse, psychological abuse by means of intimidatory and
5 N v N [2015] NZFC 7412.
6 Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581 at [67]-[68].
7 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
8 Surrey v Surrey, above n 6, at [67].
9 At [68].
10 At [69].
harassing behaviour and to constitute a pattern of behaviour falling within s 3(4) of the Act.
[14] Counsel for MN did not challenge the Judge’s finding against MN but submitted that the Judge’s other factual findings were open on the evidence.
Allegations of physical abuse
[15] The alleged physical abuse was said to consist of two “body slam” incidents, in January and April 2013, in which MN was alleged to have “barged into” SN thrusting against her or pushing her with his chest.
[16] SN’s evidence in respect of the January 2013 incident was that, following an argument, MN “body slammed” her causing her to fall back against the kitchen bench.11 MN was then said to have punched a milk bottle that was on the kitchen
bench.12 MN acknowledged that there had been an argument but denied the other
allegations.13
[17] The second incident was said to have occurred in April 2013. It began with a dispute about the family boat which MN had removed from the property. SN confronted MN when he was leaving the bathroom. Her evidence was that MN again “body slammed” her, by pushing her with the force of his entire body and hitting her with his chest.14 SN’s evidence was that MN did this three or four times
causing her to stagger backwards and hit the wall.15 MN’s evidence was that SN was
shouting at him and blocking the bathroom door, and that he simply pushed past as
“you push past in a crowd”.16
11 Affidavit of SN in support of Without Notice Application for Protection Order dated 15 May
2014 at [14]; and Notes of Evidence at 9.
12 At [14].
13 Notes of Evidence at 96 – 97.
14 Affidavit of SN, above n 11, at [15]; and Notes of Evidence at 14 – 15.
15 At 15.
16 At 97.
[18] SN telephoned the Police who attended and served a safety order on MN but did not lay any charges. SN later attended several physiotherapy appointments for what was described as a “whiplash injury of the cervical spine”.17
[19] Judge Burns conducted a lengthy and comprehensive analysis of the parties’ evidence on both alleged episodes. The Judge preferred MN’s evidence in respect of both incidents, for reasons which he gave in some detail.18 The Judge was not satisfied that either incident constituted physical abuse, and thus domestic violence, for the purposes of s 3.
[20] I have reviewed the evidence given to the Court. The parties’ accounts were very different and so their credibility becomes an important matter. Assessments of credibility are matters in which a Judge at first instance has a significant advantage.19
Having considered the evidence, and the Judge’s conclusions, I do not consider the
Judge erred in the findings he made in respect of these two incidents.
Allegations of psychological abuse
[21] SN also relied on instances of alleged psychological abuse. These comprised unauthorised visits by MN to the home and text messages in which MN expressed frustration at progress of resolution of property relationship issues and suggested that he would move back into the family home.20
[22] There was evidence from Dr Kathryn Murrell, a psychologist, that SN had “experienced very significant psychological strain” as a result of MN’s conduct, and that his unannounced visits to the family home had “resulted in SN’s coping defences becoming severely depleted”.21
[23] Ms McCartney submitted that MN’s conduct demonstrated a pattern of coercive and controlling behaviour amounting to psychological abuse, and that the
17 Letter from physiotherapist Andrew MacFarlane dated 5 June 2014, Case on Appeal at 416 confirmed that SN had attended six appointments and had done well with her rehabilitation.
18 N v N, above n 1, at [29] and [36].
19 See R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [73]-84]; Surrey v Surrey, above n 6, at
[67].
20 Case on Appeal at 292-341.
21 Affidavit by Kathryn Anne Murrell dated 30 July 2014 at [9].
Judge erred in adopting an unduly narrow construction of the definition of domestic violence in s 3 with an excessive focus on actual or threatened physical abuse.
[24] This submission is not borne out by a review of the Judge’s decision. At an early stage of his judgment, the Judge turned his mind to the definition of domestic violence and he referred at length to several authorities that address what constitutes psychological abuse and a “pattern of behaviour” falling within s 3(4).22
[25] The Judge concluded that psychological abuse was not established on the evidence. The visits by MN to the family home were improper, as they were contrary to the parties’ agreement and to SN’s exclusive occupation order.23 They also intruded on SN’s privacy and understandably upset her. The Judge found, however, that MN went to the home to check whether items of property had been removed from the garage and that, although inappropriate, the visits did not amount to intimidation or harassment, or a pattern of behaviour, so as to constitute domestic violence.24 For example, two of MN’s visits to the family home in May 2014
occurred during the day and were timed to avoid coming into contact with SN.25
[26] Again, I have reviewed the evidence and the Judge’s conclusions. Having
done so, I am satisfied that the Judge’s assessment was correct.
Did the Judge err in finding that a protection order was not necessary?
[27] In Surrey v Surrey the Court of Appeal said that the assessment of whether a protection order is necessary is to be approached as follows.26
In our view all that [the applicant] was required to prove was the existence of the past violence and a reasonable subjective fear of future violence. An
22 N v N, above n 1, at [8] to [19]; Bragg v Hawea [1996] NZFLR 874, (1996) 15 FRNZ 275 (DC) at 280; G v G FC Hastings FPA020/244/99, 26 October 2000 at [45]; G v C (1997) 16 FRNZ 201 (FC) at 208; Westcott v Schoeler (2001) 20 FRNZ 281 (FC); AB v ST [2011] NZFLR 669 (HC); M v M (2007) 7 HRNZ 971 (HC) at [21]; SS v AKS [2011] NZFLR 189 (FC); Lowe v Huang HC Wellington CIV-2004-485-2630, 28 February 2007; and A v B (1998) 17 FRNZ 330, [1998] NZFLR 783 (HC).
23 Although I note that there was some uncertainty between the parties lawyers as to the effect of the occupation order at that time.
24 N v N, above n 1, at [50].
25 Affidavit of MN in reply to affidavit of SN dated 29 July 2014 at [40]; and Case on appeal at
401 and 417.
26 Surrey v Surrey, above n 6, at [77].
evidential burden then passed to [the respondent] to demonstrate factors weighing against the necessity of the order.
[28] The Judge found that SN did have a subjective fear of future violence. The Judge must have determined that SN’s fear was reasonable because he held that the burden had shifted to MN to prove that an order was not necessary.27 The Judge concluded, however, that MN had discharged that burden, identifying the following countervailing factors:28
(a) MN had modified his views, received realistic legal advice and fully understood that it was imperative he not go to the home and/or breach the occupation order.
(b)the Judge had found one instance of domestic violence, and that one instance did not constitute a long term pattern of behaviour. The violence had not been repeated and the Judge considered it unlikely that it would be repeated in the future.
(c) the “risk issues” in the case arose out of contested PRA proceedings, now under the management of senior counsel and the subject of a Court hearing. The Judge found that some of the “negative” feelings that MN had towards SN arose out of her continued occupation of the home, a matter of less significance given the progress made on the PRA issues. The Judge held that resolution of the PRA issues would also reduce SN’s concerns as to the possible risk of having to sell the home and re-house herself.
(d)MN was not a violent person, and would be deterred from future visits to the property as SN had security cameras at the home and he knew that SN could bring a further application on a without notice basis for a protection order if it proved necessary.
(e) SN was a robust, successful and resilient professional.
27 N v N, above n 1 at [59].
28 Also at [59].
[29] The Judge was further reinforced in this view by the time he issued his decision following recall. By that time a hearing as to the PRA matters had been adjourned part heard and an undertaking had been given by MN as to SN’s continued occupation.29
[30] Subject to the point made in [28] above, the Judge’s approach to the determination required under s 14(1)(b) was in accordance with Surrey. I am not satisfied that any of the matters the Judge took into account were irrelevant or that he omitted to take into account relevant matters. In my view, the decision the Judge made as to the exercise of his discretion was open to him and no basis has been made out for taking a different view.
Result
[31] For the reasons given, I am not satisfied that the Judge erred in any respect and I dismiss this appeal accordingly.
[32] I did not hear submissions from the parties regarding the matter of costs. The parties may submit brief memoranda and then arrange a one hour hearing before me (with the case officer) if they are unable to agree.
..................................................................
M Peters J
29 Undertaking of MN dated 24 March 2015.
2
0