SSS v SL HC Auckland CIV-2011-404-3988
[2011] NZHC 1851
•11 November 2011
NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995
AND S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2011-404-3988
BETWEEN SSS Appellant
ANDSL Respondent
Hearing: 9 November 2011
Counsel: T Homes for Appellant
P K Cobcroft and P L Kannemeyer for Respondent
C F L Godinet for Children
Judgment: 11 November 2011
JUDGMENT OF BREWER J
This judgment was delivered by me on 11 November 2011 at 9:30 am pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
SOLICITORS/COUNSEL
Vallant Hooker & Partners (Auckland) for Appellant
Pip Cobcroft (Auckland) for Respondent
Frank Godinet (Auckland) for Children
SSS V SL HC AK CIV-2011-404-3988 11 November 2011
Introduction
[1] The appellant appeals against a decision of Judge BHS Neal in the Family Court on 7 June 2011. Judge Neal made a protection order in favour of the respondent.
Background
[2] The appellant and the respondent were in a domestic relationship. They have five children between them and in related proceedings Judge Neal gave the appellant day-to-day care of three children and contact with the other two. The respondent had day-to-day care of those two children and contact with the other three.
[3] The respondent applied to the Family Court for a protection order against the appellant, submitting that the appellant was physically and psychologically abusive towards her and an order was necessary for her protection.
[4] In the decision on appeal, Judge Neal applied the two-pronged test for determining whether a protection order is necessary under s 14(1) of the Domestic Violence Act 1995 (―the DV Act‖), which provides that the Court may make a protection order if it is satisfied that:
(a) The respondent is using, or has used, domestic violence against the applicant, or a child of the applicant's family, or both; and
(b) The making of an order is necessary for the protection of the applicant, or a child of the applicant's family, or both.
[5] Judge Neal made a factual finding that the appellant, Mr S, had used domestic violence against the respondent. He then determined that a protection order was necessary for the protection of the respondent.1
Grounds of appeal
[6] The appellant raises two grounds of appeal:
1 SL v SS FC Auckland FAM-2008-004-1817, 7 June 2011.
(a) whether Judge Neal was entitled to make the findings of fact and credibility upon which he based the protection order; and, if he was
(b)whether he was entitled to find that the making of the protection order was necessary for the protection of the respondent.
[7] I approach resolution of this appeal having regard primarily to ss 3, 5 and 14
of the DV Act and the Court of Appeal’s leading decision in Surrey v Surrey.2
Findings of fact and credibility
[8] The first question on appeal is to be determined by way of rehearing. Factual findings are reviewable on ordinary appellate principles as outlined in Austin, Nichols.3 The appellate court must look at the material afresh and come to its own conclusions. When reviewing factual findings of this nature, however, an appellate court should be cognisant of any advantage the first instance judge has had from observing the witnesses.4 As Lord Macmillan said in Powell v Streatham Manor Nursing Home,5 courts on appeal, when assessing issues as to credibility, will always be reluctant to differ from the judge who has seen and heard the witnesses:6
But this House and other Courts of appeal have always to remember that the judge of first instance has had the opportunity of watching the demeanour of witnesses — that he observes, as we cannot observe, the drift and conduct of the case; and also that he has impressed upon him by hearing every word the scope and nature of the evidence in a way that is denied to any Court of appeal. Even the most minute study by a Court of appeal fails to produce the same vivid appreciation of what the witnesses say or what they omit to say.
[9] The appellant submits that Judge Neal should not have found on the evidence before him that the appellant had used domestic violence against the respondent after
2009. The appellant refers to a number of matters in support of this submission.
They include the lack of any allegations of domestic violence in an affidavit filed in
2 Surrey v Surrey [2008] NZCA 565, [2010] NZFLR 1.
3 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
4 Surrey v Surrey at [67]; see also Carpenter v Armstrong HC Tauranga CIV-2009-470-511, 31
July 2009, Heath J at [17]–[20].
5 Powell v Streatham Manor Nursing Home [1935] AC 243 at 256, cited in Austin, Nichols & Co
Inc v Stichting Lodestar at [13].
6 Kinloch v Young (1911) SC 1 (HL) at 4 per Lord Loreburn LC, quoted by Lord Macmillan in
Powell v Streatham Manor Nursing Home at 256.
February 2011, a strong financial motive for bringing the allegations arising out of a debt owing to Inland Revenue, and an even stronger motive arising from the appellant’s immigration status.
[10] The respondent submits that Judge Neal was cautious about accepting the respondent’s evidence, directed himself properly on the matters now raised by the appellant, and was entitled to find, on the balance of probabilities, that the respondent was truthful in her descriptions of domestic violence.
Decision
[11] For the protection order to endure I must first be satisfied that the appellant has used domestic violence against the respondent:7
[96] … [T]he test in s 14(1) is a two-pronged test. Under s 14(1)(a), the Court must first be satisfied that the respondent is using, or has used, domestic violence against the applicant, or a child of the applicant’s family, or both. This means that the Court must be satisfied that the respondent has already breached the acceptable standards of behaviour in a domestic relationship.
[12] At the hearing in the Family Court the respondent deposed a lengthy history of domestic upheaval, including an assault on her in July 2009 (for which the appellant was convicted) as well as various other assaults, threats to kill and psychological abuse. Her evidence was that the abuse has continued beyond April
2010.
[13] In my view, it was open to Judge Neal to prefer the evidence of the respondent. I note that there was some corroboration, by one of the children, of one incident that resulted in the breaking of a glass table.8 Judge Neal identified the factors that should give him cause for concern about the respondent’s credibility and felt able to be satisfied on the balance of probabilities that he could accept her evidence. That is a low standard of proof and I do not have reason to differ from his view. He had the benefit of seeing and hearing the witnesses firsthand and there is
nothing to suggest to me that his in-person observations are inconsistent with the
7 Surrey v Surrey at [96].
8 Report of lawyer for the child, dated 15 April 2011, at [6].
evidence before me on appeal. Given the nature of her relationship with the appellant, it is, in my view, unremarkable that the respondent did not report all incidents of violence to the Police or in earlier affidavits. Nor do I consider that the respondent’s alleged financial motive for bringing the allegations displaces the evidence of domestic violence.
[14] For the purposes of s 14(1)(a), I am satisfied that the appellant has used domestic violence against the respondent.
Necessity
[15] The second limb of the test for granting a protection order — the question of necessity — comprises an evaluative decision made by the Judge, taking into account all relevant factors. It is a discretionary decision for appellate purposes and thus is one that is not subject to the Austin, Nichols analysis:9
[69] This means that to succeed in an appeal, an appellant must show that the Judge acted on a wrong principle, that he or she failed to take into account some relevant matter, that he or she took account of some irrelevant matter, or that he or she was plainly wrong – that is, that the Judge could not legitimately have come to the conclusion that he or she did. Treating the decision as to whether a protection order is necessary as discretionary is consistent with the requirement in s 5(2)(b) of the DV Act that matters should be dealt with expeditiously.
[16] The Family Court Judge had before him the two prerequisites of a domestic relationship10 and a history of domestic violence. The appellant’s response at the hearing was that any domestic violence had since ceased and therefore a protection order was not necessary in terms of s 14(1)(b). Counsel for the appellant attempted to submit that the 2009 conviction could not properly be used by the Family Court Judge as a ground for proceeding to consider necessity for the protection of the
respondent. As I understand it, the basis of that submission was that events subsequently had rendered it of historical interest only. I agree with Ms Cobcroft for the respondent that at law the Judge was certainly entitled to take into account the
2009 conviction for assault.
9 Surrey v Surrey at [69]; see Blackstone v Blackstone [2008] NZCA 312, (2008) 19 PRNZ 40 at [8].
10 Domestic Violence Act 1995, s 7(1).
[17] The Family Court Judge summarised his position as follows:11
Although it is said for the respondent that given the parties are now apart and that they have met for up to half an hour at a time on changeover of the children, that there is no ongoing necessity for an order. I do not accept that, and given the matter I have referred to an imbalance between the parties and the applicant’s perception, I do consider there is the need for the protection of the order for the applicant’s safety in its wider sense including from psychological abuse.
Decision
[18] The Court of Appeal in Surrey v Surrey discussed the various considerations
that are relevant to the determination of whether a protection order is ―necessary‖:
[97] The second limb in s 14(1)(b) provides that the Court must be satisfied that the making of an order is necessary for the protection of the applicant, or a child of the applicant’s family, or both. … [T]his requires an assessment by the Court of the need for protection in the future, having regard to the objects of the DV Act, the statutory factors set out in s 14 as well as any other relevant factors.
[98] Section 5 outlines the objects of the DV Act. The overarching objectives of the Act are stated as being to reduce and prevent domestic violence in domestic relationships by recognising that domestic violence in all its forms is unacceptable behaviour and ensuring that, where domestic violence occurs, there is effective legal protection for its victims. The Act’s aims are thus protective and preventative and driven by the underlying philosophy that domestic violence in all its forms is unacceptable.
[19] The Court endorsed12 Hammond J’s remarks in Takiari v Colmer that:13
Whether a protection order ―is necessary for the protection of the applicant‖ requires a consideration of all relevant factors. ―Necessary‖ must be determined having regard to the objects of the Act as set out in s 5 of the statute, and particularly, the meaning of ―domestic violence‖ in s 3 of the statute. ―Violence‖ there has an extended meaning, covering physical, sexual and psychological abuse. But those characterisations are merely incidents; the Act is clearly a remedial statute; it is to be given a wide and liberal construction. The central feature of the statute, properly understood, is that protection from domestic violence is directed towards the elimination of abusive power and control in domestic relations.
[20] This point on appeal is against the exercise of the Family Court Judge’s discretion. I am not satisfied that any of the matters raised in the appellant’s
11 At [26].
12 At [110].
13 Takiari v Colmer [1997] NZFLR 538 (HC) at 540.
submissions show that the first instance decision is wrong. To the contrary, I agree with the Family Court Judge. This was a case where a couple had ceased living in a domestic relationship in March 2011. There was a history of domestic violence and an ongoing need for contact between the two due to the orders made for the care of their five children. The Judge was entitled to accept the respondent’s subjective view that she was at risk of further domestic violence (including psychological abuse) from the appellant. There was corroborating evidence that justified the need for ongoing protection.
[21] There is also this factor: the respondent was under both financial pressure and at risk of being deported. The appellant submits that the respondent’s reports of abuse were contrived to remedy her precarious financial and immigration situation. A protection order against the appellant would be satisfactory proof for Immigration that the parties’ relationship had dissolved due to domestic violence, assisting the respondent to obtain a special work visa and thereby gain some protection from deportation.
[22] The Immigration New Zealand Operational Manual14 sets out guidelines for the granting of special work visas for victims of domestic violence:
WI7.1 Who is eligible for a special work visa
People in New Zealand:
1. who are, or have been in a partnership (see F2.5b) with a New Zealand citizen or residence class visa holder; and
2. had intended to seek residence in New Zealand on the basis of that partnership; and
3. that partnership has ended due to domestic violence by the New Zealand citizen or residence class visa holder or someone with whom the applicant is living in a domestic relationship;15 and
4. who show a need to work in order to support themselves;
may be granted work visas valid for 6 months. This may be extended to nine months if the applicant applies for residence.
14 Published pursuant to s 25 of the Immigration Act 2009.
15 Defined in s 4 of the Domestic Violence Act 1995.
[23] The respondent accepts that a protection order would aid her application for a special work visa. But she says that her primary purpose was to eliminate the appellant’s position of abusive power and control over her. The Family Court Judge was entitled to accept that evidence.
[24] The respondent did not wish to continue a domestic relationship with the appellant. The appellant wished to continue a domestic relationship with the respondent. With a protection order in place, the respondent achieved a measure of financial independence and also a measure of protection from deportation. Without a protection order in place, the respondent would be vulnerable to the appellant in both these areas. In particular, the appellant’s support would be needed to prevent the respondent from being deported. This was the power imbalance referred to by the Family Court Judge. I am satisfied that Judge Neal was entitled to regard that power imbalance as being a material aspect of the inquiry which he had to make.
[25] That being the case, the Judge was entitled in the exercise of his discretion to issue a protection order in favour of the respondent.
Conclusion
[26] The appeal is dismissed. I am satisfied that the appellant has used domestic violence against the respondent and that Judge Neal did not err by the grant of a protection order.
[27] Since all parties are legally aided, I make no order for costs.
Brewer J
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