Wallis v Rebolledo
[2017] NZHC 2565
•20 October 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2017-404-152 [2017] NZHC 2565
BETWEEN PHILIP WALLIS
Appellant
AND
FELIPE REBOLLEDO AND CHELSEA WITHERS
Respondents
Hearing: 28 June 2017 Counsel:
P Wallis, in person, Appellant
R Thompson for RespondentsJudgment:
20 October 2017
JUDGMENT OF HEATH J
This judgment was delivered by me on 20 October 2017 at 2.15pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
R Thompson, Auckland
Copy to:P Wallis, Appellant
WALLIS v REBOLLEDO AND WITHERS [2017] NZHC 2565 [20 October 2017]
The appeal
[1] Mr Felipe Rebolledo and Ms Chelsea Withers applied, under the Harassment Act 1997 (the Act), to the District Court at Waitakere for a restraining order against Mr Philip Wallis. They alleged that Mr Wallis had engaged in a number of “specified acts” that formed a pattern of behaviour amounting to harassment against them.1
[2] On 19 December 2016, after a defended hearing at which all three parties gave evidence, Judge Cunningham made a restraining order against Mr Wallis, for a period of two years.2 A special condition of the order permits Mr Wallis to be present in the vicinity of Mr Rebolledo or Ms Withers when giving surfing lessons at Piha Beach or, more generally, within the Piha community.3
[3] Mr Wallis appeals against the restraining order.4 In doing so, he raises three questions:
(a) Did he receive a fair trial?
(b) Did the Judge err in making factual findings about the existence of
“specified acts”?
(c) If the Judge did not err in that way, was it “necessary” to make an
order?
[4] Mr Thompson, for Mr Rebolledo and Ms Withers, opposes the appeal. He submits that Mr Wallis received a fair hearing in the District Court. On the merits, Mr Thompson supports Judge Cunningham’s decision for the reasons that she gave.
The statutory scheme
[5] The term “harassment” is defined by s 3 of the Act:
1 Harassment Act 1997, s 3(1). See also the definition of “harassment” in s 4(1) of the Act.
Section 4(1) of the Act is set out at para [8] below.
2 Rebolledo v Wallis [2016] NZDC 25582.
3 Ibid, at para [83], set out at para [32] below.
4 I discuss the test for appellate review at paras [11]–[13] below.
3 Meaning of harassment
(1) For the purposes of this Act, a person harasses another person if he or she engages in a pattern of behaviour that is directed against that other person, being a pattern of behaviour that includes doing any specified act to the other person on at least 2 separate occasions within a period of 12 months.
(2) To avoid any doubt,—
(a) the specified acts required for the purposes of subsection (1) may be the same type of specified act on each separate occasion, or different types of specified acts:
(b) the specified acts need not be done to the same person on each separate occasion, as long as the pattern of behaviour is directed against the same person.
(3) For the purposes of this Act, a person also harasses another person if—
(a) he or she engages in a pattern of behaviour that is directed against that other person; and
(b) that pattern of behaviour includes doing any specified act to the other person that is one continuing act carried out over any period.
(4) For the purposes of subsection (3), continuing act includes a specified act done on any one occasion that continues to have effect over a protracted period (for example, where offensive material about a person is placed in any electronic media and remains there for a protracted period).
[6] The jurisdiction to make a restraining order is set out in s 16(1) of the Act:
16 Power to make restraining order
(1) Subject to section 17, the [District Court] may make a restraining order if it is satisfied that—
(a) the respondent has harassed, or is harassing, the applicant;
and
(b) the following requirements are met:
(i) the behaviour in respect of which the application is made causes the applicant distress or threatens to cause the applicant distress; and
(ii) that behaviour would cause distress, or would threaten to cause distress, to a reasonable person in the applicant’s particular circumstances; and
(iii) in all the circumstances, the degree of distress caused or threatened by that behaviour justifies the making of an order; and
(c) the making of an order is necessary to protect the applicant from further harassment.
….
[7] Section 6(1) of the Act articulates the object of the statute, while s 6(2)
explains how it is intended that the object be met:
6 Object
(1) The object of this Act is to provide greater protection to victims of harassment by—
(a) recognising that behaviour that may appear innocent or trivial when viewed in isolation may amount to harassment when viewed in context; and
(b) ensuring that there is adequate legal protection for all victims of harassment.
(2) This Act aims to achieve its object by—
(a) making the most serious types of harassment criminal offences:
(b) empowering the court to make orders to protect victims of harassment who are not covered by domestic violence legislation:
(c) providing effective sanctions for breaches of the criminal and civil law relating to harassment.
…
[8] The “specified acts” to which the definition of “harassment” refers5 are set out in s 4(1) of the Act:
4 Meaning of specified act
(1) For the purposes of this Act, a specified act, in relation to a person, means any of the following acts:
(a) watching, loitering near, or preventing or hindering access to or from, that person’s place of residence, business, employment, or any other place that the person frequents for any purpose:
5 The definition is set out at para [5] above.
(b) following, stopping, or accosting that person:
(c) entering, or interfering with, property in that person’s
possession:
(d) making contact with that person (whether by telephone, correspondence, electronic communication, or in any other way):
(e) giving offensive material to that person or leaving it where it will be found by, given to, or brought to the attention of that person:
(ea) giving offensive material to a person by placing the material in any electronic media where it is likely that it will be seen by, or brought to the attention of, that person:
(f) acting in any other way—
(i) that causes that person (person A) to fear for his or her safety; and
(ii) that would cause a reasonable person in person A’s
particular circumstances to fear for his or her safety.
[9] I distil the following propositions from those statutory provisions:
(a) The object of the Act is to provide greater protection to victims of harassment who are not able to obtain protection orders under the domestic violence legislation.6 This object is achieved by:
(i)Enlarging the type of behaviour beyond “domestic violence” (as defined in the Domestic Violence Act 1995)7 to ensure protection is available to someone who is not in a defined domestic relationship;8 and
(ii)Extending the scope of unacceptable behaviour (including what might otherwise be regarded as innocuous or trivial in
6 Harassment Act 1997, s 6(1) and (2)(b), set out at para [7] above.
7 Section 3 of the Domestic Violence Act 1995 defines the type of abuse encompassed within the
term “violence” as including physical, sexual and psychological aspects. Section 3(2)(c)(ii)
includes “harassment” as an illustration of “psychological abuse”.
8 For the purposes of the Domestic Violence Act 1995, s 4(1) defines the term “domestic relationship” as a spouse or partner, a family member, a person who ordinarily shares a household with another or has a close personal relationship with another. The term “family member”, defined by s 2 of the Act, includes blood, marriage (including civil union or de facto relationship), adoption and whanau relationships, or other “culturally recognised family group”.
nature),9 which is of a kind that requires a protective order to cover those who are not in a domestic relationship.
(b)The circumstances in which restraining orders may be made contain three distinct dimensions:
(i)The first involves words or conduct on the part of the person alleged to be harassing the other. These are the “specified acts” to which s 4(1) of the Act refers.10 These give rise to the pattern of behaviour required to establish harassment.
(ii)The second involves the effect of the alleged behaviour on the applicant for the restraining order. In short, the behaviour must be such as to cause distress to a reasonable person in the position of the applicant, or to threaten him or her.11
(iii)The third is the statutory acknowledgement that while the first and second elements might be established, the Court must stand back and determine whether, in the circumstances of the particular case, a restraining order “is necessary to protect the applicant from further harassment”.12
[10] The Act is designed “to provide greater protection to victims of harassment” by ensuring adequate legal protection is available for such victims.13 In proceedings that have no criminal element, that objective is to be achieved by “providing effective sanctions for breaches of the … civil law relating to harassment”.14 The question whether it is necessary to make a restraining order is informed by those
objects.15
9 Harassment Act 1997, s 6(1)(a), set out at para [7] above.
10 Set out at para [8] above.
11 Harassment Act 1997, s 16(1)(b), set out at para [6] above.
12 Ibid, s 16(1)(c), set out at para [6] above.
13 Ibid, s 6(1), set out at para [7] above.
14 Ibid, s 6(2)(c), set out at para [7] above.
15 Ibid, s 6(3).
Appellate review
[11] Section 34(2) of the Act equates an appeal against a restraining order to one brought against a decision of the District Court in any other type of civil proceeding. That type of appeal is characterised as one “by way of rehearing”.16 Delivering the judgment of the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar, Elias CJ said17
[16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.
(footnote omitted)
[12] Nevertheless, in exercising its appellate function, this Court must recognise advantages enjoyed by the District Court in relation to the making of factual findings in cases where the presiding Judge has had the opportunity to see and hear the witnesses give evidence. As the Chief Justice, in Austin, Nichols, observed:18
[13] ... The appeal court must be persuaded that the decision is wrong, but in reaching that view no “deference” is required beyond the “customary” caution appropriate when seeing the witnesses provides an advantage because credibility is important. Such caution when facts found by the trial judge turn on issues of credibility is illustrated by Rae v International Insurance Brokers (Nelson Marlborough) Ltd and Rangatira Ltd v Commissioner of Inland Revenue.
(Footnotes omitted)
[13] In Surrey v Surrey,19 notwithstanding the approach articulated by the
Supreme Court in Austin Nichols, the Court of Appeal took the view that a challenge
to a finding of “necessity” gave rise to an appeal against a discretionary decision, as
16 District Courts Act 2016, s 124. See also Mooney v Wilkinson [2015] NZHC 2488 at paras [8]–
[10] (Ellis J).
17 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
18 Ibid, at para [13]. See also Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 197 (Richardson P and Tipping J) and 199 (Thomas J); and Rangatira Ltd v Commissioner of Inland Revenue [1997] 1 NZLR 129 (PC).
19 Surrey v Surrey [2008] NZSC 565, [2010] 2 NZLR 581 at paras [68]–[69].
opposed to one requiring re-evaluation. That is no longer the correct appellate approach. As Harrison J, for the Court of Appeal, said in SN v MN,20 the Surrey approach has not survived the later decision of the Supreme Court in Kacem v Bashir.21 I approach the appeal on the basis of the need for a fresh evaluative assessment of the findings made in the District Court.
Background
[14] The origin of the disputes that led to the restraining order application is grounded in what Mr Wallis regarded as an attempt by Mr Rebolledo to build a business teaching surfing on the back of the goodwill and reputation that Mr Wallis and his son had established. Some time ago, Mr Wallis established a business in Piha that was known as “Piha Surf School”, now operated primarily by his son. Mr Rebolledo and Ms Withers (who, by then, were in a personal relationship) set up business in competition, calling themselves “Piha Surf Academy”. Mr Wallis’ concern was that they were trying to pass themselves off as his son’s business, and were using his son’s intellectual property to do so. This caused him much distress. The “specified acts” on which Mr Rebolledo and Ms Withers relied all sprang from the discontent that arose out of that business dispute.
[15] Piha is a small community. Mr Wallis had little compunction in conveying his dismay and anger about what he believed that Mr Rebolledo and Ms Withers had done to him. The behaviour he exhibited provided the foundation for Judge Cunningham’s conclusions that he had engaged in a pattern of behaviour amounting to harassment. I am sure that Mr Wallis did not see his actions in that way. That is clear from his attempts, during the trial, to rely upon notions of “karma” to defend his words and actions. However, on the legislative test, questions of “karma” have no relevance.
[16] The “specified acts” that Mr Rebolledo and Ms Withers relied on, for the
purpose of the restraining order application, were:22
20 SN v MN [2017] NZCA 289, [2017] 3 NZLR 448 at para [46].
21 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at paras [33]–[35].
22 Rebolledo v Wallis [2016] NZDC 25582 at para [17].
(a) An incident in June 2015 when Mr Wallis ran over Mr Rebolledo’s
surf board with his car;
(b)An occasion in December 2015 where it was alleged that Mr Wallis was verbally aggressive to Mr Rebolledo;
(c) An occasion on which Mr Wallis interfered in a surfing lesson that
Mr Rebolledo was giving;
(d) An approach by Mr Wallis to Mr Rebolledo in a car park, when
Mr Rebolledo was with two customers;
(e) An incident on 22 December 2015, when Mr Wallis allegedly aimed the truck he was driving at both applicants when they were walking in a car park near the fish and chip shop at South Piha Beach;
(f) An incident on 19 March 2016, during which Mr Wallis yelled and said abusive words to Ms Withers in the North Piha car park;
(g)Occasions on which Mr Wallis sent messages to other people on Facebook, alleging that the applicants were aggressive and deceitful people.
[17] The last of those acts occurred on 19 March 2016. The hearing in the District
Court took place on 8 December 2016.
[18] Judge Cunningham found all but one of these incidents (the alleged interference with a surf lesson)23 to have been proved by Mr Rebolledo and Ms Withers.
The District Court decision
[19] First, Judge Cunningham considered whether each of the seven alleged incidents had been proved. Then, the Judge considered whether, cumulatively, two
23 See para [16](c) above.
or more amounted to “a pattern of behaviour” constituting harassment. In holding
that a restraining order should be made Judge Cunningham said: 24
[70] … Part of that pattern has its genesis in Mr Wallis’ feelings about the business that Mr Rebolledo and Ms Withers have set up namely the Piha Surf Academy. In my view Mr Wallis has an ongoing grievance about this.
[71] On a number of occasions Mr Wallis has stated words to the effect that the applicants will not last long in the Piha community. For example, the comment about Mr Rebolledo being a weasel and that weasels do not last long in this community. Similarly that persons of their character will not last in the Piha community. While linked to the grievance, it forms a pattern in the sense Mr Wallis would like them to leave Piha.
[72] Mr Wallis made some statements in his written evidence that should also be mentioned. He made the following statement in a document dated 24
June 2016:
In the short time Ms Withers has lived in Piha (less than 2 years), it is quite remarkable how Ms Withers befriended me and got involved in the club I am secretary for. She attended free surfing coaching sessions that I ran and was happy for me to put her three year old daughter on a surf board and show her how to skateboard. Ms Withers then began to look at me in a way that made me question her motive.
It was enough for me to ask her how old she was, which seem to sober her up. She then very suddenly became very close to my eldest son’s girlfriend and was texting and messaging her daily. I was also surprised one night to find her cuddling up to my second son who was also 5 years younger than Ms Withers. A few days later, Ms Withers complained to me that my second son would not contact her back after their night out.
It was around that time that Ms Withers complained to me that guys did not want to stay with her. I tried, for Ms Withers’ daughter’s sake, to advise her to be more definite about what quality she was looking for in a man. Her reply to me when I said that was, “oh so you do have to have a checklist”.
Over the summer months I had seen Ms Withers leave the beach car park with several different males but at no time did I have any evidence that Ms Withers received money for sex. I did wonder how she was at university and yet could still afford to drive 70 kms return from Piha to Henderson twice a day to drop off her daughter to day care. It is also interesting that she could subsequently afford to fly to Bali, for all I knew, her parents were paying her way.
[73] Ms Withers suggested Mr Wallis was calling her a prostitute. Mr Wallis disagreed. I agree what was said in the last paragraph is Mr Wallis strongly suggesting that she might be a prostitute. It is shameful.
24 Rebolledo v Wallis [2016] NZDC 25582.
[74] He then referred to text messages he had attached. Mr Wallis went on:
I repeat, it is quite remarkable how quickly Ms Withers got close to my family and then my family members, to then just suddenly turn around and start a new surf board school within almost identical name to my son’s surf school, and now she claims she fears me.
Her allegations that I tried to hit with a truck, or ran over her boyfriend’s surfboard on purpose, or chased her round bushes at north Piha on 19 March 2016 are false, and shows she is not quite too faced but, also has an extremely malicious side to her personality that is hidden when she first meets people.
[20] In finding that, taken together, two or more of the specified acts amounted to
“a pattern of behaviour” constituting harassment, the Judge said:25
[75] It is clear from those statements that Mr Wallis has a low opinion of Ms Withers. It was apparent when he was cross-examining her that Ms Withers felt very upset. She was fighting back the tears.
[76] In my view there is a pattern of behaviour demonstrated by Mr Wallis that shows the applicants’ concerns for their safety are justified. He cannot let go of the grievance. He wants them to leave Piha which is their home. He demonstrates his animosity toward both applicants by actions and words. I am satisfied that a restraining order should be made.
[21] The Judge did not consider discretely whether it was “necessary” to make a restraining order.26. While she may have intended her observation (“I am satisfied that a restraining should be made”) to equate to a finding of “necessity”, I am left in doubt about whether the two concepts can be treated as synonymous, having regard to the scheme and purpose of the Act.
[22] The absence of any separate reasoning about the question of “necessity” leads me to the view that I must consider that question afresh. In doing so, I must be guided by the findings made by the District Court Judge in making the restraining order.27 In particular, I do so on the basis that the conduct of Mr Wallis was belittling of (particularly) Ms Withers. I agree with the Judge that the suggestion that Ms Withers may have been a prostitute was “shameful”. Other incidents are also troublesome, to the extent that past behaviour must always be the best predictor
of future behaviour.
25 Ibid.
26 Harassment Act 1997, s 16(1)(c), set out at para [5] above.
27 Rebolledo v Wallis [2016] NZDC 25582 at para [76], set out at para [20] above.
Analysis
[23] Logically, an analysis of the appeal points would commence with a consideration of the fair trial arguments advanced by Mr Wallis. However, as I have come to the view that the appeal turns on whether the Judge ought to have found that it was “necessary” to make a restraining order, I defer my comments on those issues until later.
[24] Having considered the evidence that Judge Cunningham heard, I accept that the findings of credibility that led the Judge to conclude that all but one of the “specified acts” were proved, the effect of the behaviour exhibited by Mr Wallis was likely to cause distress to the applicants in the sense described in s 16(1)(b) of the
Act,28 and the “specified acts” together constituted a relevant “pattern of behaviour”,
for the purposes of s 16(1)(a) of the Act were all open to her. I am not prepared to disturb those findings.
[25] The issue of “necessity” requires close attention. The authorities demonstrate why it is appropriate to consider that question discretely from those elements found in s 16(1)(a) and (b) of the Act.29 While the authorities do no more than to give effect to the words of the statute, to the extent that particular authority may be helpful, I refer to what Venning J said, in Henderson v Wharton:30
[20] It is significant that before the Court can consider making a restraining order the applicant must satisfy all of the requirements in [section
16(1)] (a), (b) and (c). If the requirements are met the Court may make the restraining order. The wording of the section suggests the Court retains a
discretion. However, if the Court was to come to the conclusion that making an order was necessary to protect the applicant from further harassment it is
likely the discretion against making an order would only be exercised rarely.
…
[37] In the present case I accept that the offensive material would have caused Ms Henderson distress and that such behaviour would cause distress to a reasonable person in her circumstances. However, that is not enough. To support the making of a restraining order the Court must also be satisfied that, in all the circumstances the degree of distress caused justifies the making of the order and importantly, that the making of the order is
28 Set out at para [5] above.
29 Section 16 of the Harassment Act 1997 is set out at para [6] above.
30 Henderson v Wharton HC Whangarei CIV-2011-488-78, 29 September 2011.
necessary to protect the applicant, in this case, Ms Henderson, from further harassment.
(Emphasis added)
[26] In my view, the necessity inquiry enables the Court to consider factors that go beyond those arising out of the specified acts and any pattern of behaviour resulting from them. The inquiry requires a broad range of considerations to be brought to account in determining whether the conduct is such that it is necessary to make a restraining order. Such considerations will include factors arising out of the particular relationships in issue (which, as I have indicated, go beyond “domestic
relationships” as defined for the purposes of the Domestic Violence Act 1995)31 and
any relevant rights and freedoms guaranteed by the New Zealand Bills of Rights Act
1990.
[27] The most common rights and freedoms that might be engaged in any particular case involve freedom of expression,32 freedom of association33 and freedom of movement.34 Plainly, such rights and freedoms will yield in circumstances where an order is necessary. But, the fact that they may need to yield underscores why they should be taken into account in the first place.
[28] The relevance of guaranteed rights and freedoms to the necessity inquiry was considered in Waxman v Crouch.35 Palmer J said:
[22] … it would involve considering the relevant right or freedom in deciding whether making the order is “necessary” to protect the applicant from further harassment.
[29] Although the Domestic Violence Act addresses more serious conduct (in the form of physical, sexual or psychological abuse) and is restricted to those in a “domestic relationship”,36 that statute also requires the Court to consider whether it
is necessary to make a protection order, before doing so.37 In Surrey v Surrey,
Glazebrook J, giving the judgment of the Court of Appeal, emphasised that
31 See para [9](a) above.
32 New Zealand Bill of Rights Act 1990, s 14.
33 Ibid, s 17.
34 Ibid, s 18.
35 Waxman v Crouch [2016] NZHC 2004.
36 See para [9](a) above.
37 Domestic Violence Act 1995, s 14(1)(b).
s 14(1)(b) of the Domestic Violence Act discussed the type of predictive assessment needed to determine whether a protection order should be made.38 The Judge was alive to the need to protect (in that case) both mother and children, having regard to the objects of the Act. She continued:39
[39] … the level of risk of future violence will obviously be a relevant factor in assessing necessity. The Act does not, however, envisage that there will be a full inquiry into risk levels with associated detailed expert evidence. This would be inconsistent with the requirement in s 5(2)(b) of the [Domestic Violence] Act that access to the Court should be as speedy, inexpensive and simple as is consistent with justice. The ascertainment of future risk is in any event a notoriously difficult exercise, even with expert evidence and the use of risk assessment tools (see Beecher-Monas, Evaluating Scientific Evidence: An Interdisciplinary Framework for Due Intellectual Process (2009), pp 139 – 140).
[40] In our view, the scheme of the [Domestic Violence] 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. It is implicit in s 14(1)(a), (5)(a) and (5)(b) that the nature and seriousness of past domestic violence is relevant to assessing whether an order is necessary for the protection of the applicant, or a child of the applicant’s family, in the future. It is also relevant under s 14(3) to consider if there has been a pattern of past violence. This is understandable. The single most robust predictor of future violence is a history of multiple prior offences (see Melton and others, Psychological Evaluations for the Courts: A Handbook (2007), p 316).
[41] Because a wide range of behaviour falls under the rubric of “domestic violence”, as defined by s 3, the necessity for a protection order must be assessed against the seriousness of the past domestic violence. The more serious the possible future violence, a lesser risk of it reoccurring may justify a protection order than would be the case where the possible future violence is less serious.
[42] The nature and seriousness of past violence may be a predictor of the type of violence that may occur in the future. While the fact that past violence was serious does not in itself make it more likely to reoccur, any future violence, if it does occur, is more likely to be of a serious character than if the past violence was relatively minor. We note, for example, that offenders who have demonstrated a pattern of serious offences involving penetrative sexual assaults pose a higher risk of committing such serious offences in the future than if the past sexual assaults had been minor (R v Peta [2007] 2 NZLR 627 at para [45]).
[43] In this case there was nothing in the evidence to suggest that reliance on past behaviour was not an appropriate guide to future conduct in this case, particularly given Mr S’ lack of insight into his behaviour. Further, Mr S had not provided evidence of any countervailing or protective factors. In our
38 Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581.
39 Ibid.
view, 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. Contrary to the position taken by Fogarty J, it is not for the applicant, absent the respondent meeting this evidential burden, to show that no countervailing factors exist. That evidential burden was not met by Mr S in this case.
(Emphasis added)
[30] I considered this issue in Q v Q [Domestic violence].40 In that case, a Family Court Judge had determined that Mr Q had abused Ms Q, both physically and psychologically, and had come to the view, based on the principle that past violence is a strong indicator in favour of a protection order, that it was necessary for an order to be made. I took the view that the Judge had erred by failing to take account of a broader set of factors, and by limiting himself to questions of abuse. I said:41
[25] On the basis of the evidence I have summarised, I consider that, in determining whether a final protection order was “necessary”, the Judge ought to have brought to account the following factors:
(a) There was no evidence of any breach of the temporary protection order.
(b) There was an express finding of no past (or likely future) violence against any of the children.
(c) Mr Q was generally “a mild mannered, calm person with an even temperament”, whose change in behaviour had manifested themselves after the parties “separated” in October 2009.
(d) Following the temporary protection order, Mr Q had successfully completed a domestic violence programme and was living in more settled personal circumstances, away from the family home.
(e) Evidence about Ms Q’s personality traits, provided by her sister
[31] To similar effect, in S v S,42 Katz J accepted the need for a broader approach. She said:
[18] When determining whether it is necessary to make a protection order the Court must consider whether the behaviour forms part of a pattern of behaviour in respect of which the applicant needs protection even if, when viewed in isolation, some or all of the behaviour may appear minor, trivial or unlikely to recur. The Court is also required to take into account the
40 Q v Q [Domestic violence] [2012] NZHC 1448, [2012] NZFLR 582.
41 Ibid.
42 S v S [2017] NZHC 1574, [2017] NZFLR 519.
applicant’s perception of the nature and seriousness of the behaviour, and the effect of that behaviour on the applicant. However, care must be taken not to assign undue weight to the subjective perceptions of the applicant.
[19] In Surrey v Surrey the Court of Appeal noted that an assessment of necessity requires an assessment of the need for protection in the future, having regard to the objects of the Act, the statutory factors in s 14, as well as any other relevant factors. The Court identified various factors relevant to the consideration of necessity. One of those factors is the level of risk of future violence, based on past conduct and informed by the subjective views of the victim. Prior offending is considered to be the most robust predictor of future violence. A further relevant factor is the seriousness of the past domestic violence. Once an applicant has established past violence and a reasonable subjective fear of future violence, the onus then falls on the respondent to raise countervailing factors that weigh against the need for a protection order.
(Footnotes omitted)
[32] Judge Cunningham recognised the disputes had arisen in the context of the competitive businesses operated by Mr Wallis and his son (on the one hand) and Mr Rebolledo and Ms Withers (on the other). Nevertheless, she was aware that, in giving surfing lessons at Piha Beach, Mr Wallis and Mr Rebolledo were likely to be in close proximity to each other. To accommodate the need for each to trade, the Judge crafted an exception to the restraining order to deal with that problem. That likely arose out of the need for surfing lessons to be given in areas of the sea which were safer than others.
[33] In imposing a special condition to the restraining order, to deal with this aspect of the case, the Judge said:43
[80] … That [circumstance] is regrettable however it is a fact of life given that they both earn a living from giving surfing lessons. Incidental contact in this way will not be a breach of the restraining order.
[81] However, when there is contact, if Mr Wallis acts in a way, for example, by gesture or by words such actions can be considered as a breach of the restraining order.
[82] Because Piha is a small community both geographically and numerically, it is likely that the two are going to come across one another from time to time. That of itself will not be a breach.
[83] There will be a special condition of the restraining order that;
43 Rebolledo v Wallis [2016] NZDC 25582.
“It will not be a breach of this restraining order of itself if Mr Wallis is in the vicinity of Ms Withers or Mr Rebolledo within the context of giving surfing lessons at Piha Beach or generally within the community of Piha. However any gesture, act or words spoken directly to either of the applicants or to others about the applicants within their hearing or sight will be a breach”.
[34] Judge Cunningham sought to distinguish circumstances in which Mr Wallis might have been in the vicinity of Ms Withers or Mr Rebolledo in the context of giving surfing lessons at Piha Beach or within the community of Piha (on the one hand) and restraint of “any gesture, act or words spoken directly to either [Mr Rebolledo or Ms Withers] or to others about [them] within their hearing or sight (on the other)”.44 The former was permitted, while the latter conduct was intended to constitute a breach of the restraining order.
[35] My concern is whether a restraining order was necessary to protect Mr Rebolledo or Ms Withers in circumstances where the Judge was prepared (albeit somewhat reluctantly, and purely for practical financial reasons) to allow them to continue to work in close proximity, in the very circumstances that had given rise to the original applications. In expressing that concern, I note that the Judge may also, at least to some limited extent, have conflated the effects of Mr Wallis’ proved behaviour on Mr Rebolledo and Ms Withers. As I read her Honour’s judgment, the words and conduct were much more likely to cause relevant distress to, or threaten, Ms Withers. Having said that, I deal with the appeal on the basis that the conduct did affect both applicants in the manner found by the Judge.
[36] Was it necessary to make a restraining order when the very presence of Mr Rebolledo and Ms Withers carrying on business activities in the vicinity of Mr Wallis was the situation most likely to provoke prohibited behaviour on his part? If the conduct were sufficiently bad to justify a restraining order, should it not also have required Mr Wallis to ply his trade elsewhere?
[37] Although not completely analogous to the present case, Glazebrook J, in
Surrey, considered the relevance of the possibility that an order would sever
44 Ibid, at para [83], set out at para [30] above.
domestic relations when determining whether the issue of a protection order was required. In that context, she said:45
[114] Although it may be a relevant factor, we do not consider the fact that an order will sever domestic relations should in itself be the governing factor in the judicial determination of necessity. A person is entitled to decide with whom they wish to associate. If an individual does not wish to associate with another person, it would normally be expected that the other person would respect his or her wishes in that regard. Where there is a protection order, however, this expectation is backed up by criminal sanctions for any breach of the order. A court, when deciding whether a protection order is necessary, must decide whether the intervention of the State (including the imposition of criminal sanctions for breach) is justified, taking into account the purposes of the [Domestic Violence] Act as set out in s 5 (see [89] of Appendix One), the statutory criteria set out in s 14 of the [Domestic Violence] Act and any other relevant factors.
(Emphasis added)
[38] While not wishing to understate the seriousness of conduct in which Mr Wallis engaged, I am not satisfied that Mr Rebolledo and Ms Withers established, on a balance of probabilities, that a restraining order was necessary, in all the circumstances.
[39] Presumptively, persons in the position of Mr Rebolledo and Ms Withers should be entitled to a restraining order where behaviour amounting to harassment has taken place and the consequence has been to cause distress of the type to which s 16(1)(b) of the Act refers. But, in determining whether a restraining order is necessary, the Court (to use the words adopted by Glazebrook J in Surrey v Surrey), “must decide whether the intervention of the State (including the imposition of criminal sanctions for breach) is justified, taking into account the purposes of” the
Act.46
[40] The purpose of the Act is “to provide greater protection to victims of harassment” by (among other things) recognising that behaviour that may appear innocent or trivial when viewed in isolation may amount to harassment when viewed
in context” and “ensuring that there is adequate legal protection for all victims of
45 Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581 at para [114].
46 Ibid, at para [114], set out at para [37] above.
harassment”.47 The reference to “adequate legal protection” (my emphasis) informs the question whether it is “necessary” to make a restraining order.
[41] Notwithstanding the financial consequences to Mr Wallis that might otherwise have ensued if an unconditional restraining order had been made, the fact that the Judge was prepared to allow him to work in close proximity to Mr Rebolledo and Ms Withers tells against a finding that a restraining order was necessary.
[42] In many ways, the fact that behaviour of the type involved has been proved denounces the conduct and compels Mr Wallis to understand the nature and consequences of his actions. It creates a real disincentive for him to repeat such behaviour. That disincentive flows from the nature of the sanction that might otherwise await him if his behaviour re-emerges. If it did reoccur, it is very likely that an unconditional restraining order would be made that could well prevent Mr Wallis from carrying on business from Piha Beach. And, any attempt to gloat about the outcome of this appeal would put Mr Wallis at risk of further proceedings. That risk, I suspect, will be a sufficient deterrent; and perhaps a stronger one than the restraining order itself.
Fair trial issues
[43] Fair trial issues were raised by Mr Wallis. Having regard to my conclusion on the “necessity” point, I do not need to address those concerns. However, out of fairness to the Judge, I should make some comment on the allegations made.
[44] This hearing took place over one day in the District Court. It was originally scheduled for four hours. Both parties were self-represented. It is plain that their inability to focus on a disciplined approach to the giving of evidence and making of submissions left the Judge frustrated. There was much inadmissible and irrelevant
evidence.48 A number of comments were made by Mr Wallis, in particular, which
provoked the Judge into making observations of her own, that (I am sure) she would have preferred to have expressed more temperately.
47 Harassment Act 1997, s 6(1), set out at para [5] above.
48 I say this notwithstanding that s 30 of the Harassment Act 1997 permits introduction of a broader range of evidence than would be permitted by the Evidence Act 2006.
[45] I do not criticise the Judge for what occurred. The circumstances in which she found herself were very difficult. If I had been required to consider whether the fair trial points succeeded, I would have ruled that they did not.
Result
[46] For those reasons, the appeal is allowed. The restraining order made by the
District Court on 19 December 2016 is set aside.
[47] There will be no order as to costs.
P R Heath J
Delivered on 20 October 2017 at 2.15pm
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