Thomas v Kane

[2021] NZHC 1211

NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV 2020-419-91

[2021] NZHC 1211

UNDER

Section 143 of the Care of Children Act 2004

Section 177 of the Family Violence Act 2018

IN THE MATTER OF

An appeal from the Family Court

BETWEEN

THOMAS

Appellant

AND

KANE

Respondent

Hearing:

22 April 2021

Appearances:

Appellant in person

K L Hoult and B Burton-McKenzie for the Respondent

Judgment:

27 May 2021

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 27 May 2021 at 2:30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

THOMAS v KANE [2021] NZHC 1211 [27 May 2021]

Introduction

[1]        Mr Thomas and Ms Kane married in 2008. They have a son, Peter, who was born in 2011.1

[2]        Mr Thomas and Ms Kane separated briefly in July 2016, and then finally in December 2016. Until separation, they and Peter were living in Auckland.

[3]        On 12 December 2016, Ms Kane obtained an interim parenting order from the Family Court that provided she would have day-to-day care of Peter, with Mr Thomas having supervised contact. Ms Kane also obtained a temporary protection order against Mr Thomas. Having obtained those orders, Ms Kane moved with Peter to Hamilton. Mr Thomas remained in Auckland. They have lived in those respective cities since then.

[4]        On 11 August 2017, Judge D R Brown discharged the temporary protection order and made a final protection order. In December 2017, Mr Thomas applied to discharge the final protection order. He applied again in January 2018. His applications were dismissed by Judge R H Riddell on 19 July 2018.

[5]        On 5 November 2018, the interim parenting order was varied to provide that Mr Thomas was to have unsupervised contact for six consecutive Saturdays, with a view to his contact being extended to overnight contact in Auckland. In due course his contact was extended to every second weekend.

[6]        In May 2019, Mr Thomas applied for a parenting order in his favour. He proposed that Peter should live with him in Auckland, and have contact with Ms Kane every weekend. He also applied for a guardianship direction authorising him to enrol Peter at a particular school in Auckland. In June 2019, Mr Thomas made another application to discharge the final protection order.

[7]        Mr Thomas’s applications, together with other related matters, were the subject of a five-day hearing before Judge A J Twaddle in February 2020. The Judge

1      With the parties’ consent, fictitious names have been used in this judgment.

delivered judgment on 19 March 2020.2 His Honour dismissed Mr Thomas’s application to discharge the protection order, discharged the interim parenting order made on 12 December 2016, and made a final parenting order that Peter is to be in Ms Kane’s day-to-day care, with Mr Thomas having specified weekend and holiday contact. The Judge also decided the other matters that had been before him.

[8]Mr Thomas appeals against Judge Twaddle’s judgment.

Procedural history of the appeal

[9]        Mr Thomas commenced this appeal by a notice of appeal dated 15 April 2020. Mr Thomas was then representing himself. His notice of appeal did not properly identify the grounds of appeal or the parts of the decision against which he was appealing. Peters J noted these defects in a minute dated 8 May 2020. Her Honour directed that Mr Thomas remedy the defects by filing an amended notice of appeal.

[10]      Mr Thomas then engaged counsel, Mr McCutcheon. Mr McCutcheon filed an amended notice of appeal on 10 June 2020. This remedied the defects. Among other things, the amended notice clarified that Mr Thomas was appealing against only two parts of Judge Twaddle’s judgment: the decisions (i) making a final parenting order that Peter is to be in Ms Kane’s day-to-day care and (ii) dismissing Mr Thomas’s application to discharge the protection order.

[11]      Mr McCutcheon filed a second amended notice of appeal on 16 July 2020. This merely added an appeal against a costs judgment that Judge Twaddle had in the meantime delivered on 26 June 2020.

[12]      It transpired that Mr Thomas had not commenced his appeal in time. He applied for leave to appeal out of time. Muir J granted leave in a minute dated 15 February 2021. By this time Mr Thomas was again representing himself.

2      Kane v Thomas [2020] NZFC 1433.

[13]      In granting leave to appeal out of time, Muir J noted there had been an unnecessary number of applications in the appeal. He therefore granted leave subject to various conditions and consent directions. These included:

(a)By 1 April 2021 Mr Thomas was to file and serve his submissions in support of the appeal, and any updating affidavit.

(b)Mr Thomas was not to make any further applications relating to the appeal other than by leave of the court.

[14]      Mr Thomas initially complied with these conditions and directions. He filed and served his submissions, and an updating affidavit, on 1 April 2021.

[15]Then, on 6 April 2021:

(a)Mr Thomas filed two interlocutory applications. First, he applied for leave to extend the time to appeal two earlier decisions of the Family Court (one being the decision of Judge D R Brown, dated 11 August 2017, making a final protection order, the other being the decision of Judge R H Riddell, dated 19 July 2018, dismissing Mr Thomas’s earlier applications to discharge the protection order). Secondly, he applied for a stay of execution of those earlier Family Court decisions.

(b)Mr Thomas filed a substantial affidavit that he had affirmed in support of those two applications.

(c)Mr Thomas purported to file an amended notice of appeal. This reverted to the unfocussed approach that Peters J had criticised in her minute of 8 May 2020. It appeared to challenge every part of Judge Twaddle’s decision. It also incorporated Mr Thomas’s (hoped for) appeal against the two earlier Family Court decisions.

[16]      Mr Thomas required leave to file an amended notice of appeal.3 He did not apply for leave, but by implication that is what he was doing by purporting to file it.

[17]      Mr Thomas therefore made three applications on 6 April 2021: the two explicit applications in respect of the earlier Family Court decisions, and the implicit application for leave to amend his notice of appeal. Contrary to the conditions on which Muir J had granted leave to appeal out of time, Mr Thomas did not apply for leave to make any of these applications.

[18]      On the morning of 22 April 2021, shortly before the hearing of the appeal was to commence, Mr Thomas filed a “memorandum”. This consisted of further submissions (five pages) and further evidence (ten “exhibits”, though one was simply a legal authority). Filing this was contrary to Muir J’s direction, to which Mr Thomas had consented, that he file his submissions and any updating affidavit by 1 April 2021.

The hearing – preliminary matters

[19]      At the start of the hearing I raised some preliminary matters with Mr Thomas. I said that on 6 April 2021 he had made two explicit applications and one implicit application. I reminded him that Muir J had granted leave to appeal out of time on the condition he would not make any further applications other than by leave of the court. I observed he had not sought the court’s leave to make any of the applications.

[20]      Mr Thomas’s response was that it was a misunderstanding on his part. He had understood he was seeking leave by making the applications.

[21]      I then expressed the view, putting to one side any question of leave to file the applications, that the applications in respect of the earlier Family Court decisions appeared difficult ones for Mr Thomas to pursue. First, Mr Thomas was years late in appealing. Secondly, the decisions appeared to me, on the face of it, to have been overtaken by Judge Twaddle’s decision. At that point, without further discussion, Mr Thomas told me he withdrew those two applications.

3      High Court Rules 2016, r 20.9(4).

[22]      Mr Thomas then asked me whether he could still rely on his affidavit of 6 April 2021. Given the material in the affidavit was not fresh, was filed late, and was in support of applications Mr Thomas had withdrawn, I told Mr Thomas he could not rely on it. Mr Thomas then told me he withdrew the affidavit.

[23]      I next turned to the amended notice of appeal Mr Thomas had purported to file on 6 April 2021. I told Mr Thomas he needed leave to file it. I observed leave would be challenging. Ms Kane had filed submissions and prepared for the hearing on the basis only two parts of Judge Twaddle’s decision were under challenge, yet the amended notice appeared to challenge every part of the Judge’s decision. The notice also contained the defects Peters J had identified. At that point, Mr Thomas told me he withdrew his amended notice of appeal.

[24]      The final matter I raised with Mr Thomas was the memorandum he had filed on the morning of the hearing. I told him this was well past the agreed timetable for submissions or any updating affidavit. Mr Thomas replied that all but one of the exhibits were already in the bundle prepared for the appeal, and he had annexed them to the memorandum merely for convenience. The exception was the first exhibit, which he said was new. I told Mr Thomas that if he wished to refer to that exhibit during his submissions, he would have to explain to me why I should consider it. Mr Thomas did not refer again to that exhibit, and I have not considered it.

Judge Twaddle’s judgment

[25]      Judge Twaddle delivered a detailed and careful judgment of over 50 pages. The Judge dealt with several issues, only two of which are the subject of Mr Thomas’s appeal. The first issue was whether the final protection order should be discharged. The second issue was what orders should be made for Peter’s parenting and schooling.

[26]      Because of the view I take of Mr Thomas’s appeal, it will be convenient to set out his Honour’s reasoning at some length.

Application for discharge of protection order

[27]      Judge Twaddle began by referring to ss 109 and 110 of the Family Violence Act 2018 (FVA). Section 109(1) of the FVA provides:

109Power to discharge protection order

(1)The court may discharge a protection order if all the following apply:

(a)the applicant or the respondent applies for the discharge:

(b)the discharge complies with section 110:

(c)the court thinks fit.

[28]Section 110 sets out the test and the criteria for discharging a protection order:

110Test 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.

[29]      The Judge also referred to ss 9 to 11 of the FVA. He noted s 9(2) defines violence as including psychological abuse. He then set out s 9(3):

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

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

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

[30]      The Judge observed that s 10 provides a single act may amount to abuse and a number of acts that form 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. Section

11 provides psychological abuse includes threats of abusive behaviour and intimidation or harassment.

[31]      The Judge said it was necessary to bear in mind the purpose of the FVA set out in s 3(1), which is to stop and prevent family violence by:

(a)recognising that family violence, in all its forms, is unacceptable; and

(b)stopping and preventing perpetrators from inflicting family violence; and

(c)keeping victims, including children, safe from family violence.

[32]The Judge also took into account the principles set out in s 4.

[33]      The Judge then referred to case law on the FVA (or its predecessor). He referred to Takiari v Colmer,4 in which Hammond J dismissed a submission that the conduct of the applicant for an order had to be taken into account in determining whether there is a need for protection. Judge Twaddle said the principles relating to necessity set out by the Court of Appeal in Surrey v Surrey5 remained relevant:

(a)The assessment of necessity requires a broad-based assessment by the Court of the need for protection in the future, having regard to both the objects of the Act and the statutory factors set out in the Act, as well as any other relevant factors;

(b)The scheme of the Act envisages that the Court will assess the risk of domestic violence on the basis of past conduct, informed by the subjective views of the victim and any other relevant factors;

(c)The applicant’s perception and vulnerability may be persuasive factors in favour of granting an order but the overall picture must still be objectively considered;

(d)The fact that Parliament has mandated that the subjective views of an applicant regarding past violence have to be taken into account suggests that the purpose of a protection order may not only be to ensure that those who have been subjected to domestic violence in the past are safe in the future from the risk of domestic violence, but also that they feel safe from domestic violence;

(e)An evidential burden passes to the respondent to raise countervailing factors that weigh against the need to grant a protection order once an applicant has proved the existence of past violence and his or her reasonable subjective fear of future violence.

4      Takiari v Colmer [1997] NZFLR 538 (CA).

5      Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581.

[34]The Judge said the Surrey principles were affirmed by the Court of Appeal in

SN v MN,6 in which the Court said:

(a)The necessity enquiry 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;

(b)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. What is required is an evaluative exercise to determine whether a protection order is necessary.

[35]      The Judge then noted Judge Brown had made a final protection order in a reserved decision dated 11 August 2017. In that decision Judge Brown had recorded Ms Kane’s evidence. This included that Mr Thomas was possessive, jealous and controlling, that he had prohibited her from seeing her family in India, that he had threatened to have her family killed, that he told her that “we all live together or no- one lives”, and that he had smashed her laptop and slapped her across the face. Judge Brown recorded Mr Thomas flatly denied each allegation of threats or violence, denied he had been possessive, jealous or controlling, and said Ms Kane’s inability to see her family was because of passport difficulties, not because he prevented it. Judge Brown found Mr Thomas was not telling the truth and did not accept his evidence. He said Mr Thomas seemed intrinsically quarrelsome. He accepted Ms Kane’s evidence, and said she appeared to be a quiet, rational and reasonable person whose evidence was matched by Police records.

[36]      Judge Twaddle then summarised Judge Riddell’s judgment of 19 July 2018 dismissing Mr Thomas’s earlier applications to discharge the protection order. Judge Riddell had found a protection order was necessary for these reasons:

(a)Mr Thomas did not accept Judge Brown’s finding he had been violent;

6      SN v MN [2017] NZCA 289, [2017] 3 NZLR 448.

(b)Mr Thomas had sent abusive emails to Ms Kane through her lawyer. Judge Riddell referred in particular to an email sent by Mr Thomas on 18 February 2018 which he described as a “friendly letter to Ms Kane, or notice for her reflect on her actions” [sic]. Mr Thomas set out 18 reasons why he thought she would be liable for criminal proceedings and said she would be “prosecuted under the Defamation Act for $10 million and was guilty of conspiracy under the Crimes Act for deciding to leave him in 2012/13”. Judge Riddell found the letter instilled fear in Ms Kane and was “nothing if not obsessive and psychologically abusive”;

(c)Mr Thomas had a very concrete view of the world and of his right to complain and raise issues, and his fault-finding tipped over into psychological abuse;

(d)Ms Kane wanted the order to remain and saw his affidavit statements and emails to her lawyer as abusive;

(e)The tone of Mr Thomas’s affidavit evidence and of his email dated 18 February 2018 suggested his obsessive behaviour had not changed.

[37]      I interpolate that the email Mr Thomas sent on 18 February 2018 formed the basis of a charge of breaching the protection order. Mr Thomas pleaded guilty to the charge.

[38]      Having referred to the earlier decisions of Judges Brown and Riddell, Judge Twaddle summarised the evidence before him. Mr Thomas’s evidence was that Ms Kane had misled the Court. Mr Thomas referred in detail to Ms Kane’s filing of a without notice application for a protection order in December 2016. Mr Thomas said that Ms Kane had used the protection order as a pressure tool, including to deny him information about what was happening in Peter’s life. He said Ms Kane lived in Hamilton, while he lived in Auckland, so it was unlikely they would run into each other. There had been no issues when they saw each other for contact changeover. In cross-examination, Mr Thomas said it was Ms Kane, not him, who did not tell the truth

in the hearing before Judge Brown. He said he was sorry for writing the 18 February 2018 email, but that he had moved on and would not harm Ms Kane in any way. He said Ms Kane had obtained an order dissolving their marriage by misleading the Court.

[39]      Ms Kane’s evidence was that Mr Thomas persisted in raising the same matters that had been dealt with in two earlier judgments. She said Mr Thomas harassed her with continuous and repetitive Court proceedings. She said she needed the protection order to continue, as it acted as a restraint on his behaviour.

[40]Judge Twaddle found, among other things, that:

(a)Mr Thomas continued to deny Judge Brown’s findings.

(b)Mr Thomas had a very intense, concrete, inflexible, self-entitled and obsessive view of the world, particularly with respect to Ms Kane and Peter, and closed his mind to views which do not coincide with or support his own.

(c)Mr Thomas had a fixed belief that Ms Kane obtained the temporary protection order by giving untruthful and misleading evidence.

(d)Apart from his email of 18 February 2018, Mr Thomas did not accept responsibility for his behaviour, and completely lacked insight into the effect of his behaviour on Ms Kane. He portrayed himself as the victim.

(e)Mr Thomas was capable of acting in a controlling and manipulative way towards Ms Kane.

(f)Taking these factors into account, there was a high risk of future family violence in the form of psychological abuse of Ms Kane by Mr Thomas if the protection order were discharged.

(g)While the risk of Mr Thomas physically abusing Ms Kane was low, the other areas of concern that led to the order being made (possessive, controlling and threatening behaviour, particularly by email) remained.

(h)Ms Kane found Mr Thomas’s behaviour to be extremely disturbing and wanted the order to remain in force. She was entitled to feel safe.

(i)Ms Kane’s concerns were genuine and reasonable.

(j)Mr Thomas had not discharged the evidential burden to raise countervailing factors that weighed against the need for the protection order to remain in force.

[41]      The Judge therefore concluded the protection order remained necessary. He dismissed Mr Thomas’s application to discharge it.

[42]      The Judge also directed that Mr Thomas was not to make any further application to discharge the protection order without the leave of the Court. It appears the Judge was, understandably, concerned about the multiple discharge applications that Mr Thomas had already made. It is a matter of concern that, at the same time as pursuing this appeal, Mr Thomas made another application to discharge the protection order. He did so without first obtaining the leave of the Court.7

Peter’s parenting and schooling

[43]      Judge Twaddle surveyed relevant provisions of the Care of Children Act 2004 (COCA). He noted s 48 gives the court power to make parenting orders relating to the day-to-day care of, and contact with, a child. Section 46R provides that where two or more guardians of a child cannot agree on a matter concerning the exercise of their guardianship (such as where the child is to be educated), on application the court may make any order relating to the matter as it thinks proper.

7      At the hearing Mr Thomas told me that the Hamilton Family Court had advised him that leave was not required to make a further application. After the hearing, Mr Thomas filed a memorandum dated 14 May 2021. This attached emails between Mr Thomas and Registry officers at the Hamilton Family Court. Mr Thomas had asked whether leave was required for him to file a fresh application. The Registry officers said that leave was not required. However, Mr Thomas’s inquiry was a general one. He did not draw to the officers’ attention Judge Twaddle’s direction that leave was required. In those circumstances, Mr Thomas was not entitled to treat the officers’ answers as somehow overriding the Judge’s direction.

[44]      The Judge said the powers given to the court must be exercised on a principled and reasonable basis, having regard to the purpose of the COCA. He said the relevant purpose was to promote children’s welfare and best interests, and facilitate their development, by helping to ensure appropriate arrangements are in place for their guardianship and care: s 3(1). The paramount consideration is the welfare and best interests of a child in his or her particular circumstances: s 4(1). Section 4(2) provides that the court must take into account the principles in s 5. The Judge then set out those principles. In summary, they are:

(a)A child’s safety must be protected and, in particular, a child must be protected from all forms of violence.

(b)A child’s care, development and upbringing should be primarily the responsibility of his or her parents and guardians.

(c)A child’s care, development and upbringing should be facilitated by ongoing consultation and co-operation between his or her parents and guardians.

(d)A child should have continuity in his or her care, development and upbringing.

(e)A child should continue to have a relationship with both of his or her parents, and a child’s relationship with his or her family group should be preserved and strengthened.

(f)A child’s identity should be preserved and strengthened.

[45]      Next the Judge observed that, as there was a final protection order in force against Mr Thomas, s 5A applied. This meant the court, in taking into account the principle in s 5(a), must have regard in particular to the fact the order is in force, the circumstances in which the order was made, and any written reasons given by the Judge who made the order.

[46]      The Judge then referred to s 6, which provides that a child must be given reasonable opportunities to express views on matters affecting the child, and that any such views must be taken into account. The Judge recorded that Ms Ewen, lawyer for Peter, had filed memoranda referring to Peter’s views, and that he (the Judge) had met with Peter.

[47]      In determining what day-to-day care and contact arrangements would best meet Peter’s needs and facilitate his development, the Judge then considered the following matters:

(a)Peter’s attachments, character, medical care, schooling, views and needs.

(b)The relationship of Ms Kane and Mr Thomas.

(c)The parenting styles and competence of Ms Kane and Mr Thomas.

(d)The application of the s 5 principles.

[48]      The Judge dealt with each of these matters with care and in detail. In so doing he referred, among other things, to the evidence of a court-appointed clinical psychologist, Ms Trenberth. In an earlier part of his judgment, in which the Judge rejected complaints made by Mr Thomas about Ms Trenberth, the Judge said he was satisfied that Ms Trenberth was fully competent to express opinion evidence about the matters in her brief, that her methodology was sound, and that she was fair, objective, balanced and measured. (Mr Thomas did not pursue an appeal against that part of the Judge’s judgment.)

[49]The Judge’s findings included:

(a)In addressing Peter’s medical history, the Judge noted that Peter had broken an arm while playing in a park during contact with Mr Thomas, and that Mr Thomas had “acted appropriately and took him to Starship Hospital”. The Judge recorded that Mr Thomas’s evidence was that since Peter had been in Ms Kane’s care he had been “in poor health and

care”. The Judge, having considered the evidence including extensive medical records, found Ms Kane had been very aware of Peter’s medical needs, had obtained appropriate medical advice when required, and had acted in accordance with the advice.

(b)As to Peter’s schooling, the school that Mr Thomas proposed in Auckland was decile 9, whereas the school that Peter attended in Hamilton was decile 5. Mr Thomas had referred to an Education Review Office (ERO) report dated 21 August 2018 that was critical of the assessment processes at Peter’s school. Mr Thomas had therefore submitted any assessments of Peter’s performance at the school could not be considered a true assessment. Judge Twaddle found Peter was well settled at the school, was achieving very well academically, there was no reason to doubt the ability of Peter’s teacher to make accurate assessments, and there was no evidence the Auckland school proposed by Mr Thomas would better meet Peter’s needs.

(c)Peter would likely take some time to settle into a new school such as the one proposed by Mr Thomas. He could be unsettled, and his educational progress could be impaired.

(d)Peter said he wanted to remain in the care of his mother and attend his current school in Hamilton. While Peter’s views could not be determinative, the Judge gave them significant weight.

(e)The relationship between Ms Kane and Mr Thomas was highly mistrusting and conflicted.

(f)Ms Kane provided Peter with routines, consistency and boundaries which met his needs. She was a competent parent. Mr Thomas provided an indulgent parenting style which had significant risks for Peter. Mr Thomas’s competence as a parent was seriously compromised by the risks he posed to Peter and by his lack of insight into the effect of his parenting style on Peter. Ms Kane was more likely

to meet Peter’s long-term psychological parenting needs than was Mr Thomas.

[50]      Taking account of the s 5 principles, the Judge found it would be in Peter’s welfare and best interests to remain in the day-to-day care of Ms Kane. Among other reasons, remaining in the care of Ms Kane would provide Peter with continuity of care and schooling arrangements. The Judge also found that particular contact arrangements would meet Peter’s needs.

Judge Twaddle’s costs judgment

[51]      Judge Twaddle delivered a costs judgment on 26 June 2020. Ms Kane submitted Mr Thomas’s proceedings were in many respects malicious and vexatious, and that in the ordinary course she would be entitled at least to costs on a 2B basis. However, as costs on that basis would exceed her actual costs of $20,871.77, she claimed only her actual costs.

[52]      The Judge found, unsurprisingly, that Ms Kane was the successful party. He said that much of the contents of Mr Thomas’s voluminous affidavits was repetitive and irrelevant. He said Mr Thomas’s stance was often unreasonable, and that Mr Thomas had made the proceedings far more complex and protracted than they should have been. He concluded Mr Thomas should pay Ms Kane her actual costs of

$20,871.77.

Mr Thomas’s challenges to Judge Twaddle’s judgments

[53]      Mr Thomas’s written submissions were largely directed at matters other than the decisions under appeal. He began with Ms Kane’s without notice application in December 2016. He submitted the application was “a well-planned systematically [sic] abuse of legal system” by both Ms Kane and her lawyer. He raised issues with reports prepared by the organisation that supervised his contact with Peter. He said the court-appointed lawyer for the child had been unprofessional. He claimed Ms Kane had obtained an order dissolving their marriage by misleading the Court.

[54]      At the hearing, I asked Mr Thomas to focus on the two decisions of Judge Twaddle that were under appeal: the decisions relating to the protection order and the parenting and schooling order. I asked Mr Thomas to explain why the Judge should have made different decisions.

[55]      In response to my questions, Mr Thomas said the protection order should have been discharged because: the Judge’s only concern was about online abuse, and he (Mr Thomas) had breached the order only once (by the email of 18 February 2018); Ms Kane had emailed Mr Thomas many times, and Mr Thomas did not want to be exposed to the risk of breaching the order by responding to her; and Mr Thomas was unable to pursue a teaching career with the protection order in place.

[56]      As to the parenting and schooling order, Mr Thomas said there were four reasons that an order should have been made that he have day-to-day care of Peter, with Peter attending school in Auckland. First, Peter had health issues that would be addressed promptly in Auckland, whereas Peter was on a waiting list in the Waikato. Secondly, there was clear evidence of ERO concerns about the school that Peter attended in Hamilton. Thirdly, in the COVID-19 environment, Peter would enjoy a much bigger bubble in Auckland than in Hamilton. Finally, he submitted Ms Kane could just as easily find work in Auckland as in Hamilton.

[57]      Mr Thomas appealed against Judge Twaddle’s subsequent costs judgment. That appeal turned merely on Mr Thomas’s challenges to the Judge’s substantive judgment. Mr Thomas did not suggest that, if his challenges to the substantive judgment failed, there were any grounds to upset the Judge’s costs decision.

Issues on this appeal

[58]There are two issues on the appeal:

(a)Should Judge Twaddle have discharged the protection order?

(b)Should Judge Twaddle have made the parenting and schooling orders sought by Mr Thomas?

[59]      Only if one or both of those issues is determined in Mr Thomas’s favour will I have to review the Judge’s costs judgment.

Scope of appellate review

[60]      Ms Hoult, for Ms Kane, made submissions on the scope of appellate review. Mr Thomas did not address that topic.

[61]      Ms Hoult accepted an appeal against a parenting order was a general appeal governed by the principles in Austin, Nichols & Co Inc v Stichting Lodestar.8 But she submitted an appeal against a refusal to discharge a protection order was an appeal against the exercise of a discretion, subject to the more limited appellate review set out in Kacem v Bashir.9 This requires an appellant to show the Judge made an error of law, took account of irrelevant considerations, failed to take account of a relevant consideration, or reached a plainly wrong decision.

[62]      I do not accept that submission. The Court of Appeal in SN v MN held an appeal against a decision to refuse a protection order is a general appeal.10 The same must apply to an appeal against a decision to refuse to discharge a protection order.

[63]      Of course, even with a general appeal, the appellant bears the burden of persuading the appellate court that the court below erred.

Should Judge Twaddle have discharged the protection order?

[64]      Mr Thomas does not make any challenge to Judge Twaddle’s statement of the legal principles relevant to an application to discharge the protection order. Mr Thomas merely submits that the Judge, when applying those principles to the facts, should have reached a different decision.

[65]      As Judge Twaddle noted, under s 110(1) of the FVA the court must not discharge a protection order unless satisfied the order is no longer necessary for the protection of any protected person. Section 110(2) sets out a non-exhaustive list of

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

9      Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.

10     SN v MN [2017] NZCA 289, [2017] 3 NZLR 448 at [46].

matters to which the court may have regard in determining whether to discharge a protection order. The principles in Surrey v Surrey and SN v MN, which the Judge carefully set out, are relevant to a decision whether to discharge a protection order.

[66] The Judge gave detailed reasons for refusing to discharge the protection order. He made a number of relevant factual findings, some of which I have set out at [40] above. The most relevant findings were:

(a)Apart from his email of 18 February 2018, Mr Thomas did not accept responsibility for his behaviour, and completely lacked insight into the effect of his behaviour on Ms Kane. He portrayed himself as the victim.

(b)Mr Thomas was capable of acting in a controlling and manipulative way towards Ms Kane.

(c)There was a high risk of future family violence in the form of psychological abuse of Ms Kane by Mr Thomas if the protection order were discharged.

(d)While the risk of Mr Thomas physically abusing Ms Kane was low, the other areas of concern that led to the order being made (possessive, controlling and threatening behaviour, particularly by email) remained.

(e)Ms Kane found Mr Thomas’s behaviour to be extremely disturbing and wanted the order to remain in force. She was entitled to feel safe.

(f)Ms Kane’s concerns were genuine and reasonable.

[67]      Mr Thomas did not challenge any of these findings. That put his appeal rather on the back foot. Given these findings, it is difficult to see how any conclusion could be reached other than that the order remained necessary for the protection of Ms Kane.

[68]      Mr Thomas nonetheless said the protection order should have been discharged. First, he said the Judge’s only concern was about online abuse, and he (Mr Thomas) had breached the order only once. I do not accept the Judge’s concern was limited to

online abuse. The Judge was concerned about psychological abuse generally. Moreover, the Judge was correct to focus on the risk of abuse if the protection order were discharged. Mr Thomas’s behaviour while the order is in force is only a weak guide to how he might behave if the order were discharged.

[69]      Secondly, Mr Thomas said Ms Kane had emailed him many times while the protection order was in force. Mr Thomas said he was concerned he would breach the protection order if he responded to Ms Kane’s emails. He said he did not want to take the risk of responding. I find this point unpersuasive. It was clear to me at the hearing that Mr Thomas understood that under the FVA, Ms Kane is able to consent to contact with Mr Thomas.11 That she has done so by emailing him is not a good reason for discharging the protection order, given the many concerns found by Judge Twaddle.

[70]      Thirdly, Mr Thomas submitted he was unable to pursue a teaching career with the protection order in place. Mr Thomas said this had become apparent since Judge Twaddle’s decision. However, Mr Thomas did not put any evidence of this before this Court. Even if he had, his inability to pursue such a career is irrelevant to the threshold inquiry under s 110(1) – whether the order is no longer necessary for the protection of any protected person.

[71]      As I noted above, in his written submissions Mr Thomas also addressed various other matters, such as whether Ms Kane had properly used the without notice procedure when first applying for the protection order. Mr Thomas did not explain how those matters were relevant to whether the protection order was still necessary.

[72]      Mr Thomas has not shown any error in Judge Twaddle’s decision to decline his application to discharge the protection order. In my view, the Judge, after a careful analysis of the evidence against the background legal framework, made an entirely correct decision.

11     Family Violence Act 2018, s 91.

Should Judge Twaddle have made the parenting and schooling orders sought by Mr Thomas?

[73]      Judge Twaddle began this part of his judgment by surveying the relevant provisions of the COCA. Mr Thomas does not argue the Judge misstated those provisions or overlooked other relevant provisions. He merely submits the Judge, when applying those provisions to the facts, should have reached a different decision.

[74]      I noted above, at [48] and [49], some of the key findings made by the Judge in reaching his decision that Peter remain in Ms Kane’s day-do-day care. Before me, Mr Thomas did not challenge the following findings:

(a)Ms Trenberth was fully competent to express opinion evidence about the matters in her brief, her methodology was sound, and she was fair, objective, balanced and measured.

(b)Ms Kane had been very aware of Peter’s medical needs, had obtained appropriate medical advice when required, and had acted in accordance with the advice. (Mr Thomas submitted Peter’s health issues would be more quickly addressed in Auckland than Hamilton, but that submission reflected Mr Thomas’s view of the health services in the two areas. It did not involve a criticism of Ms Kane.)

(c)Peter was well settled at his school in Hamilton and was achieving very well academically.

(d)Peter would likely take some time to settle into a new school such as the one proposed by Mr Thomas. He could be unsettled, and his educational progress could be impaired.

(e)Peter said he wanted to remain in the care of his mother and attend his current school in Hamilton.

(f)Mr Thomas’s competence as a parent was seriously compromised by the risks he posed to Peter and by his lack of insight into the effect of

his parenting style on Peter. Ms Kane was more likely to meet Peter’s long-term psychological parenting needs than was Mr Thomas.

[75]      Notwithstanding these unchallenged findings, Mr Thomas said there were four reasons an order should have been made that he have day-to-day care of Peter, with Peter attending school in Auckland.

[76]      First, he said Peter had health issues that would be addressed promptly in Auckland, whereas Peter was on a waiting list in the Waikato. He said there was clear evidence of this that the Judge had overlooked. I asked Mr Thomas to take me to that evidence. He directed my attention to paragraph 19 of his written submissions. There he referred to a letter from the lawyer for Peter dated 12 August 2019. This records a particular health issue that Peter was experiencing. It does not support Mr Thomas’s contention that Peter would receive more prompt treatment for that issue if he were in Auckland.

[77]      Secondly, Mr Thomas said there was clear evidence of ERO concerns about the school that Peter attended in Hamilton. He referred me to an ERO report dated 27 October 2020.12 Under “Key next steps”, Mr Thomas noted the report said that leaders and teachers at the school “should explore the use of a nationally norm-referenced tool to add further reliability and validity to student assessment”. Mr Thomas said that, by contrast, the school that he proposed in Auckland was already using such a tool.

[78]      I do not accept that is a reason for preferring one school over the other for Peter. The ERO report is very positive, including in respect of student assessment. It says the validity and reliability of student assessment information “has been significantly strengthened”. There can, therefore, be only a slight difference in this respect between the schools. That slight difference cannot overcome the other strong reasons for preferring the Hamilton school (the unchallenged findings at [74](c), (d) and (e) above).

12     This report was prepared after the judgment under appeal. It was annexed to an affidavit in reply by Ms Kane dated 14 April 2021.

[79]      Thirdly, Mr Thomas said that in the COVID-19 environment Peter would enjoy a much bigger bubble in Auckland than in Hamilton. This was because Mr Thomas has a larger extended family in Auckland than Ms Kane has in Hamilton. I place minimal weight on this point, particularly given the current COVID-19 situation, and Hamilton having experienced fewer restrictions than Auckland.

[80]      Finally, Mr Thomas said Ms Kane could just as easily find work in Auckland as in Hamilton. He did not explain to me how this was relevant to a determination of Peter’s welfare and best interests.

[81]      In summary, the Judge made some significant findings that were not challenged by Mr Thomas: Peter wanted to remain in his mother’s care and at his present school; Mr Thomas’s competence as a parent was seriously compromised; Ms Kane was more likely to meet Peter’s parenting needs; Peter was settled at his school and doing very well academically; and Peter would probably be unsettled, and his educational progress impaired, if he were moved to a new school. Given those findings, the Judge’s decision not to order that Peter’s day-to-day care be with Mr Thomas or that he change schools was well justified. None of the matters raised by Mr Thomas persuade me that such an order should be made. Judge Twaddle made the correct decision.

The costs judgment

[82]      I have rejected Mr Thomas’s challenges to Judge Twaddle’s substantive judgment. There is therefore no basis for revisiting the Judge’s costs judgment.

Costs

[83]      Ms Kane is entitled to costs on this appeal. If the parties cannot agree the amount of costs, I direct:

(a)Ms Kane is to file and serve a memorandum on costs, not to exceed three pages (excluding any schedule of costs or relevant documentary annexures), by 11 June 2021.

(b)Mr Thomas is to file and serve a memorandum on costs, not to exceed three pages (excluding any schedule of costs or relevant documentary annexures), by 18 June 2021.

Result

[84]Mr Thomas’s appeal is dismissed.

[85]Mr Thomas is to pay costs on the appeal to Ms Kane.

Campbell J