Southall v Northey
[2023] NZHC 1313
•30 May 2023
NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing- judgments/
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV-2022-470-000166
[2023] NZHC 1313
UNDER the District Court Act 2016 and the High Court Rules 2016 IN THE MATTER
of an appeal against a decision of the Family Court at Tauranga
BETWEEN
MR SOUTHALL
Appellant
AND
MS NORTHEY
Respondent
Hearing: 8 May 2023 Appearances:
L Speed and S Stretton for the Appellant P Bromiley for the Respondent
Judgment:
30 May 2023
JUDGMENT OF WALKER J
This judgment was delivered by me on 30 May 2023 at 11 am Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
[SOUTHALL] v [NORTHEY] [2023] NZHC 1313 [30 May 2023]
[1] Mr Southall appeals a decision of the Family Court declining his application to discharge a final protection order.1
[2] The parties were in a relationship for approximately 10 years and separated in 2018. There are three children of the relationship, all of whom are under the age of 13.
[3] The respondent, Ms Northey, made a without notice application to the Tauranga Family Court for both a parenting order and protection order against Mr Southall on 15 May 2019. Mr Southall did not take steps to defend those proceedings. He has since said that he felt overwhelmed by the process, was depressed and under a lot of financial pressure at that time. He has not however put the matters alleged by Ms Northey in support of the original protection order in dispute before the Family Court or on appeal.
[4] A final protection order was made on 16 August 2019 by operation of law because Mr Southall had taken no steps.
[5] The overarching question under s 110 of the Family Violence Act 2018 (FVA) is whether continuation of the protection order is no longer necessary in the current context. It is for Mr Southall to satisfy the Court of this. I distil the key issues before the Court as:
(a)whether Mr Southall breached the protection order in 2022 as found by the Family Court by:2
(i)repeatedly driving past Ms Northey’s place of work in March 2022 after learning it was her place of work, and
(ii)parking outside Ms Northey’s home on 13 May 2022;
(b)whether there is a risk of future family violence;
1 [Southall] v [Northey] [2022] NZFC 12324 [Family Court Judgment].
2 Family Violence Act 2018, s 110(2)(f).
(c)whether and to what extent there is a necessity for contact and the likelihood (if the order is discharged) of future contact; and
(d)whether Ms Northey’s fear is objectively reasonable.
[6]Each raises a number of sub-issues.
[7] The application to discharge the protection order was accompanied by an application for supervised contact with the children as a first step towards rebuilding a relationship with them.
Background
[8] The family violence allegations during the relationship are that Mr Southall subjected Ms Northey and their children to alcoholism, verbal, physical and psychological abuse. Mr Southall has accepted some of the allegations but denies others and the asserted extent of violence. He accepts for instance that his behaviour at separation was poor but denies ongoing psychological abuse. He accepts that he went to the house and verbally abused Ms Northey after the children were in bed and that he smacked his son on one occasion. There was also one incident where Mr Southall accepts that he physically pushed Ms Northey.
[9] Mr Southall also accepts responsibility for four breaches of the protection order for which he has been convicted and sentenced. Those breaches are for texting Ms Northey, visiting her home without her consent, following her to the children’s school drop-off and sending her an offensive email. Materially, none involved physical violence. Mr Southall, with the benefit of hindsight, accepts his actions were inappropriate and wrong. He pleaded guilty to all charges, and was convicted and sentenced to 120 hours of community work and a fine. Mr Southall says at the time of his breaches, he was struggling with the separation and his own mental health. He acknowledged the use of alcohol as a coping mechanism but denies alcohol addiction.
[10] All contact between Mr Southall and the children stopped at the end of 2019 after a disagreement between the parties about care over the holiday season. He
contends now that he is in a much better position, being in a new secure relationship and having completed various parenting and self-management courses.
[11] Mr Southall is now in a stable relationship with a new partner with whom he lives. He supports her in the care of her two children. He has another child from a relationship he embarked on between the breakup with Ms Northey and his current relationship. There are unrelated civil proceedings on foot in respect of that child whose mother sadly passed away.
[12] Mr Southall refers to attendance at numerous courses and counselling which have taught him to “focus on the end goal, which is to have all my children in my life, and to be a great father to them. That is what motivates me the most”. These include a “Parenting through Separation” course and a “Living without Violence” course.
[13] Mr Southall’s stated reasons for seeking to discharge the protection order are set out in his affidavit affirmed in support of his application.3 In summary:
(a)Three years have passed since the order was made and it makes it very difficult to have a meaningful relationship with the children as he cannot contact them, nor can he contact Ms Northey directly to try to arrange contact.
(b)He has not breached the order since February 2020.
(c)He has no intention of causing Ms Northey any harm or distress but would like to be able to talk with her in the future again about their children.
(d)He has concerns about the impact the order will have going forward in terms of reputational harm.
3 Affidavit affirmed 23 May 2022.
The District Court decision
[14] The Judge referred to the power in s 109 of the Act to discharge a protection order which he described as giving a wide discretion and s 110 of the Act which constrains a court from acting unless satisfied the order is no longer necessary for the protection of any protected person.4 He identified the protected persons as including the children of the parties.
[15] He identified the list of factors in s 110(2) of the Act which the Court must consider. First, he noted that the final protection order was just over three years old (and now nearly four years old). He examined the behaviour by Mr Southall that led to the making of the order, namely Ms Northey’s allegation that Mr Southall subjected her and the children to physical and emotional abuse, his alcoholism and to family violence.
[16] Secondly, he noted that as a matter of principle the Court should not assume simply because no defence was filed that the alleged behaviour in fact occurred but equally noted that the Court can assume that when a matter is not defended then the allegations are accepted.5 He recorded that Ms Northey’s evidence about those incidents was not challenged. He said:6
What is clear to me, having listened to and observed [Ms Northey], is that the violence that she was subjected to by [Mr Southall] continues to resonate and impact upon her to this day and indeed in her affidavit she describes she has subsequently had a diagnosis of PTSD.
[17] He accepted that the behaviour was at the lower end of the spectrum but acknowledged that “a spectrum comparison loses weight when it comes to assessing the impact on victims” and that abuse falling short of actual physical violence can be hugely psychologically traumatic to the recipient and no less impactful than an act of violence at the high end of the spectrum.7
4 At [4].
5 At [8].
6 At [10].
7 At [11]–[12].
[18] Thirdly, he considered Mr Southall’s attitude to his past behaviour. He described Mr Southall’s evidence as “totally candid” in that he himself described his behaviour during the relationship as unacceptable and accepted that it traumatised Ms Northey and their children and was demeaning of her.8
[19] Fourthly, he identified the attendance by Mr Southall at a prescribed programme or service. He specifically recorded the feedback after completion of one course in which the course provider stated, among other things, that Mr Southall “has shown a huge willingness to learn and use advice”.9 However, he also noted that Mr Southall had not competed the programme until 11 March 2022. His counsel explained that Mr Southall did an initial 10 sessions of the required course but it only became apparent to him subsequently in proceedings concerning another child that he had not in fact completed it. He re-enrolled and completed the outstanding 10 sessions.10
[20] The subject of delay in completion was not put to Mr Southall during the hearing.
[21] Fifthly, the Judge focused on whether there had been any breaches since the order was made, noting the two sets of convictions. None of those breaches involved physical violence. Key however was Ms Northey’s allegation of other breaches from 2022.
[22] The Judge carefully examined the evidence in relation to those. He found one incident where Mr Southall followed Ms Northey down a main road as not proven.11 He then discussed the workplace incidents where Mr Southall drove past Ms Northey’s place of work on more than one occasion in March 2022. He noted that the standard terms of a protection order do not prevent people travelling in public places and along public roads going about their normal course of business or day-to-day activities. But it is a breach of an order to watch, loiter near, or prevent or hinder access to or from a place of residence, business, employment, educational institution or any other place
8 At [13].
9 At [14].
10 At [15].
11 At [23].
that a protected person visits often or to follow, stop or accost any protected person in a place. The Judge said:12
I accept and prefer the evidence of [Ms Northey] that on occasions he drove past without the children in the car and therefore his explanation that he was simply taking the children to school does not stack up. It is my finding as a consequence that I am satisfied on the balance of probabilities that on occasions, until advised otherwise by his counsel, he drove past her place of work and in doing so was watching her place of work and on the face of it breaching the terms of the order.
[23] The second incident he found established was that Mr Southall parked outside Ms Northey’s home on one occasion in May 2022. Her evidence was that she saw him there and reported the matter to police. Mr Southall was subsequently arrested and charged but the charge was withdrawn following receipt of an affidavit from a friend who deposed that he had been visiting Mr Southall and had borrowed his car on the day in question. Ms Northey disputed the reliability of that evidence. She gave evidence that she had known the friend for as long as she had known Mr Southall, that she had a clear view of the car and she saw Mr Southall in the car outside her home. She also gave evidence that their son similarly saw his father in the car and was upset and stressed by what he had seen.
[24] The Judge found that Ms Northey’s explanation as to what she saw and the impact that it had on their son as being consistent with seeing Mr Southall in the car rather than his friend. Thus the Judge took into account the four convictions for breach and two incidences in 2022 which he considered established on the balance of probabilities.13
[25] The Judge then examined the necessity for contact and the likelihood if the order is discharged of future contact. He noted there are separate proceedings in relation to care of the children and the need for the parties to have contact in terms of making guardianship decisions in future. He assessed the necessity for contact in the future as high.14 Regarding the likelihood of future violence, the Judge considered
12 At [29].
13 At [33].
14 At [34].
Mr Southall’s breaches of the protection order, the two incidents he had found proven and the courses taken by Mr Southall. He said:15
Given the two recent breaches to which I have referred there is a risk of future violence occurring in the future. Whilst on the one hand that might be a relatively low risk my concern is that given the ongoing proceedings under the Care of Children Act 2004 that that risk will be elevated and it is clear to me there remains a high level of conflict around what level of contact is appropriate and [Ms Northey] clearly holds some antipathy towards her perception of [Mr Southall’s] failings as a father to date.
[26] He concluded that Ms Northey’s view of the ongoing necessity for a protection order, when viewed objectively, was entirely reasonable given the two recent breaches, the relatively recent completion of the stopping violence programme and fact of ongoing interactions in conflicted proceedings. He observed that:16
The impact on [Ms Northey] of the violence, and indeed even of being in Court today with [Mr Southall], was patently palpable and obvious to me sitting on the bench and looking out in the courtroom.
Appeal grounds
[27]The pleaded grounds are that the Court erred by:
(a)preferring Ms Northey’s evidence in respect of the two incidents in March and May 2022;
(b)deciding that the incidents represented breaches of the protection order;
(c)making adverse findings against Mr Southall when key matters were not put to Mr Southall on cross-examination;
(d)taking into account irrelevant matters such as Ms Northey’s demeanour in the courtroom when assessing whether Ms Northey’s fear was objectively reasonable;
(e)placing significant weight on the fact that Mr Southall had only recently completed the Living Without Violence course ordered when, on the
15 At [37].
16 At [40].
evidence, the delays in completion were not attributable to Mr Southall; and
(f)concluding on the basis of these erroneous factual findings that the protection order should not be discharged.
Approach on appeal
[28] The appeal is brought under s 177 of the FVA. It follows that the appeal is a general appeal by way of rehearing.17 The Court of Appeal’s statement in Surrey v Surrey18 that the finding on necessity is for appellate purposes a discretionary decision not subject to the ordinary principles applicable to a rehearing has not survived the later decision in Kacem v Bashir.19
[29] This Court must make its own assessment of the merits of the case.20 The conclusion is one for the appellate court to come to. It is not required to defer to the Family Court’s assessment of the evidence. This is subject to the qualification that the court at first instance has had the opportunity to assess the credibility of witnesses. The appellate court may correctly hesitate in disturbing findings of fact and degree in that instance.21 What, if any, influence the Family Court’s reasoning should have is for the appellate court’s assessment.22
Legal principles
[30] Section 109 of the FVA provides that the Court may discharge a protection order if all the following apply:
(a)The applicant or respondent applies for the discharge.
(b)The discharge complies with s 110.
17 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.
18 Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581 at [68]–[69].
19 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [33]–[35].
20 Austin Nichols & Co Inc v Stichting Lodestar, above n 17, at [4].
21 At [5].
22 Kacem v Bashir, above n 19, at [31].
(c)The Court thinks fit.
[31] Section 110 provides a list of non-exclusive criteria for the assessment of necessity:
110 Test and criteria for discharging protection order
(1)The court must not discharge a protection order under section 109 unless satisfied that the order is no longer necessary for the protection of any protected person.
(2)In determining whether to discharge a protection order under section 109, the court must have regard to the following matters to the extent that they are relevant in the particular case:
(a)the length of the period since the order was made:
(b)the behaviour that led to the making of the order (including its nature, its seriousness, and how often violence occurred):
(c)whether, and if so how, the respondent acknowledges the respondent’s past behaviour that led to the making of the order:
(d)whether the respondent to the order complied with required attendance at or engagement with, and achieved objectives of, any assessment or programme or prescribed services:
(e)any relevant safety concerns that an assessor or a service provider has notified or advised under section 186 or 204:
(f)any family violence or breaches of the order since it was made:
(g)the necessity for contact and the likelihood (if the order is discharged) of future contact:
(h)the risk of future family violence:
(i)whether areas of concern that led to the order are no longer evident:
(j)any protected person’s ascertained views on the application (whether it is made by, or on behalf of, the applicant or the respondent).
(3)Subsection (2) does not limit the matters to which the court may have regard in determining whether to discharge a protection order under section 109.
[32] Family violence is broadly defined and includes physical abuse, sexual abuse, and psychological abuse that occurs between parties that are or have been in a
domestic relationship. Psychological abuse incudes, but is not limited to, intimidation, harassment and threats of physical, sexual or psychological abuse.23
[33]To complete the legislative framework, s 10 defines abuse as follows:
10 Meaning of abuse
(1)A single act may amount to abuse.
(2)A number of acts that form part of a pattern of behaviour (even if all or any of those acts, when viewed in isolation, may appear to be minor or trivial) may amount to abuse.
(3)This section does not limit section 9(2).
[34] The Court of Appeal addressed the test for establishing necessity in Surrey v Surrey:24
(a)The level of risk of future violence will obviously be a relevant fact when assessing necessity. The risk assessment will be able to be taken on the basis of past conduct informed by the subjective views of the applicant and any other relevant factors. The nature and seriousness of past domestic violence and the pattern of past violence are relevant to assessing necessity. The single most robust predictor of future violence is a history of prior multiple offences.
(b)The necessity for a protection order must be assessed against the seriousness of past domestic violence.
(c)Once the applicant has proved the existence of past violence and she has proved her reasonable subjective fear of future violence, the evidential burden then passes to the respondent to raise countervailing factors that weigh against the need for a protection order. Unless he meets that evidential burden, the applicant does not need to show that no countervailing factors exist.
23 Family Violence Act 2018, s 9.
24 Surrey v Surrey, above n 18, at [35]–[53] and [96]–[122].
(d)The purpose of a protection order is not only to ensure that those who have been subjected to family violence in the past are safe in the future from the risk of violence, but also, that they feel safe.
[35] In short, what is required is a broad-based assessment of the need for protection in the future having regard to the objects of the Act, the statutory factors set out in s 110 of the Act as well as any other relevant factors.25
Has Mr Southall breached the protection order?
[36] There are two kinds of alleged breach. The first is that Mr Southall drove past Ms Northey’s place of work repeatedly in March 2022 in a manner that constituted watching her place of work. Ms Northey says that this caused her significant distress. The second is an allegation that Mr Southall parked outside Ms Northey’s home on 13 May 2022 (the May incident). Mr Southall denies both.
[37] Overall, Ms Speed contended that there was no real and tangible evidence of ongoing breaches or pattern of behaviour justifying the continuation of the protection order. Rather, Ms Northey’s stated fear was borne of experience during the relationship and, if viewed in the changed circumstances the parties found themselves in, was not objectively justified.
[38] Prediction of future risk is heavily influenced by what has gone before. Mr Southall says that he only drove past Ms Northey’s place of work to drop his stepchildren to school. He says that the first time he saw Ms Northey on that route he had no idea that she worked in that area, a proposition that Ms Northey accepted on cross-examination. Ms Speed makes three points in support of her submission that the Judge erred when he concluded that these breached the protection order:
(a)The evidential conflict was not identified or resolved. Mr Southall did not recall seeing Ms Northey on the majority of these occasions which were during peak traffic on a busy road. Ms Northey indicated that they
25 At [38].
were only the distance between the witness box and the lawyer’s bench apart.
(b)The Judge accepted Ms Northey’s evidence that there were no children in Mr Southall’s car on some of the occasions without Mr Southall being tested on cross-examination on this issue.
(c)There was no cogent evidence that the particular route was not the fastest route for Mr Southall to drop off his children, only Ms Northey’s opinion.
[39] In my assessment, it was clearly open to the Family Court Judge to find that Mr Southall was in breach of the protection order by driving past Ms Northey’s place of work once he became aware he was doing so and did not stop. I agree with Ms Bromiley’s submission that whether or not the children were in the car is not material to the assessment. Mr Southall acknowledged that driving past her work could have made her feel harassed, yet he continued to do so until his counsel suggested that he choose another route. There was no evidence to suggest that any other route was impractical or inconvenient. This behaviour may seem innocuous but given the history of Mr Southall and Ms Northey’s relationship, it amounts to family violence and a breach of the protection order.
[40] The May incident caused Ms Northey to make a complaint to police which was later withdrawn for “insufficient evidence”. Ms Speed argues that this should have been, but was not, taken into account by the Family Court Judge.
[41] I find no error by the Judge in his assessment of this evidence. There was no evidence from the friend of Mr Southall who borrowed the car. Nor was there any evidence supporting the contention that the friend was parked outside Ms Northey’s home for a barber appointment. The Judge stated that he preferred the evidence of Ms Northey who he described as unmoved on cross-examination. Her apparent certainty was based on her assertion that she had known the friend longer than she had known Mr Southall. That gave the Judge assurance as to the reliability of her identification. He also considered this was corroborated by the hearsay evidence of
Mr Southall and Ms Northey’s son. While it is hearsay to the extent it is evidence of what their son saw, Ms Northey’s observation of the effect on their son is direct evidence.26
Wider context
[42] It is apparent on my reading of the judgment that the Judge was particularly mindful of the fact that this family is embarking on a Care of Children Act 2004 process. Counsel advised that the Family Court has directed provision of a report from a psychologist in the parallel proceedings in which it is likely that a psychologist will traverse how to foster a relationship between Mr Southall and his children in a safe and appropriate way.27 The necessity for contact and its likelihood if the order is discharged is one of the mandatory criteria for assessing whether a protection order should be discharged. It is reasonable to infer that once the s 133 report is completed then the potential for conflict and contact will increase. These are the sort of triggers that can lead to behaviours that a protection order is designed to protect against.
[43] I disagree that the Judge took into account Ms Northey’s demeanour in the Courtroom when making his assessment of whether her fear was objectively reasonable. Rather, he took this into account when assessing her perception of the impact on her of the violence.28 In my view, the Judge was well-placed to consider Ms Northey’s demeanour on the question of subjective fear and did not veer into giving it unjustified weight. He did not rely solely on demeanour to resolve credibility or veracity conflicts. The caution in Taniwha v R as to the unreliability of demeanour assessments is directed at a lay jury person’s assessment of credibility.29 It does not necessarily hold good in respect of an experienced Family Court judge assessing whether a party subjectively holds a particular fear. In any event, Ms Northey’s demeanour in Court was one aspect only of the evidence relied on.
26 Parliament has mandated that the Family Court may receive evidence it considers may assist it in determining a proceeding, even if that evidence is not admissible under the Evidence Act 2006: Family Court Act 1980, s 12A(4).
27 By safe, I mean psychologically safe.
28 At [40].29 Taniwha v R [2016] NZSC 121, [2017] 1 NZLR 116.
[44] I do not consider that the issue around timing of Mr Southall’s completion of the Court mandated programme was material to the Judge’s decision save in respect that he noted the short time frame between completion and the breaches in March and May 2022. That tended to show that any insights from the courses had not yet been absorbed by Mr Southall.
[45] In my assessment, the incidents of driving past Ms Northey’s place of work after becoming aware it was such, combined with the incident of parking outside her home are sufficient given the overall context to conclude that Ms Northey’s fears are objectively reasonable at this time. I also concur with the Judge that while the risk of future violence occurring in the future is relatively low, the ongoing proceedings under the Care of Children Act 2004, will elevate that risk. It follows that a cautionary approach is warranted.
[46] Finally, I am not satisfied that Mr Southall’s countervailing reasons for discharging the protection order at this time are such that its continuation is out of all proportion to its necessity. The protection order does not preclude contact in terms of making guardianship decisions in the future. As the Judge at first instance said “[i]t allows for [Ms Northey] to give permission for [Mr Southall] to talk to her about the children and he is able to do so without breaching the order provided he does not engage in any behaviour which would then constitute a breach”.30 While a protection order causes Mr Southall some difficulties, the Judge rightly identified that his breach convictions are more problematic than the protection order.31
[47] Mr Southall’s efforts to engage in programmes and courses must be seen as positive, as is his apparent adherence to the protection order since May 2022. He deserves credit for those efforts. All things being equal, and provided that there are no further breaches or incidents, a successful application to discharge the protection order appears to be a matter of time.
Result
30 Family Court Judgment, above n 1, at [34].
31 At [40].
[48] No grounds of appeal have been made out and the Judge made no error in his assessment. I am not satisfied that the order is no longer necessary for the protection of Ms Northey and their children. I therefore dismiss the appeal.
Costs
[49] I did not have submissions on costs. The parties may file memoranda within 14 days in the event costs questions need to be determined. I note that Mr Southall is in receipt of legal aid.
............................................................
Walker J
0
2
1