Wilson v Carter
[2023] NZHC 2885
•16 October 2023
NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing- judgments/
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2022-419-338
[2023] NZHC 2885
UNDER The Family Violence Act 2018 BETWEEN
MS WILSON
Appellant
AND
MR CARTER
Respondent
Hearing: 10 October 2023 Appearances:
R Sutton for Appellant D Eades for Respondent
Judgment:
16 October 2023
JUDGMENT OF LANG J
[on appeal against refusal to make final protection order]
This judgment was delivered by Justice Lang On 16 October 2023 at 3.30 pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Date:…………………………
Solicitors/counsel:
R Sutton, Barrister, Hamilton
Lance Lawson Ltd, Mount Maunganui
WILSON v CARTER [2023] NZHC 2885 [16 October 2023]
[1] This judgment determines an appeal by Ms Wilson against the refusal of Judge N J Grimes to make a final protection order in her favour against her former husband, Mr Carter.1
Background
[2] Ms Wilson and Mr Carter entered into a relationship in 2009 and remained together until June 2017. They are the parents of three children who are currently 11, eight and six years of age respectively.
[3] There has been ongoing conflict between the parents in relation to a variety of issues since they separated. The children have remained in Ms Wilson’s care. However, Ms Wilson and Mr Carter were unable to reach agreement regarding the level of contact Mr Carter should have with the children. This issue was complicated by Mr Carter’s occupation, which requires him to work irregular hours and to be absent from his home for extended periods. The parties also live in different cities. Mr Carter must drive approximately one and a half hours to uplift the children when he has contact with them.
[4] Ms Wilson filed proceedings relating to the care of the children in the Family Court in 2018. Following a two-day hearing in September 2020, Judge Grimes issued a decision on 12 October 2020 in which she made detailed orders prescribing the level of contact Mr Carter was permitted to have with the children and the manner in which this should be exercised.2
[5] In May 2019 Ms Wilson had filed an application seeking a protection order in her favour on the basis of harm she had allegedly suffered due to abusive conduct by Mr Carter towards her. This ran alongside, but was not consolidated with, the earlier proceeding in which Judge Grimes made the contact orders. The protection order proceeding was ultimately resolved in August 2020 when Mr Carter signed undertakings in which he agreed not to engage in specified forms of conduct towards
1 Wilson v Carter [2022] NZFC 9688.
2 Wilson v Carter [2020] NZFC 7996.
Ms Wilson. These included undertakings not to loiter outside her address or to watch her house.
[6] On 3 July 2022 the parties’ eldest child, Emily, fractured bones in her ankle and was required to undergo surgery. She was not discharged from hospital until 7 July 2022. Mr Carter was scheduled to have contact with Emily commencing on the following day.
[7] Ms Wilson originally agreed that contact could commence on 8 July 2022 notwithstanding Emily’s medical condition. She confirmed this in two emails and a telephone conversation with Mr Carter on 7 July and the morning of 8 July 2022. However, later on the morning of 8 July 2022 Ms Wilson changed her mind and sent Mr Carter an email advising him that Emily was in such discomfort that he would not be able to uplift her that day. She advised Mr Carter that she had received medical advice to the effect that Emily should not travel in her present condition.
[8] The orders that Judge Grimes had made expressly permitted Mr Carter to have contact with the children even if they were unwell.3 Mr Carter therefore advised Ms Wilson that he would be picking Emily up on 8 July 2022 as scheduled. Shortly after 3 pm he and his current wife drove to Ms Wilson’s address, where they parked in the driveway outside the property. They had already picked the other two children up from school in accordance with the contact orders made by the Judge. Mrs Carter’s two children were also in the rear of Mr Carter’s vehicle.
[9] Ms Wilson emerged from her address and told Mr Carter that Emily would not be going with him because of her medical condition. Mr Carter told her that the orders made by the Family Court entitled him to pick Emily up even if she was unwell. A stand-off then ensued that prompted both parties to call the police. Mr Carter and his wife remained in and around their vehicle on the street for approximately two hours as they waited for the police to arrive. During this period Ms Wilson approached the vehicle on at least two occasions and engaged in further exchanges between Ms Wilson and Mr Carter. The police never arrived at Ms Wilson’s address and Mr Carter and his wife eventually drove away without picking Emily up.
3 At [87](xiii)(8).
[10] Following this incident Ms Wilson applied for interim protection orders on a without notice basis against both Mr Carter and his wife. These were granted on 13 July 2022 along with a direction requiring Mr Carter to attend a non-violence programme. The police served the orders on Mr Carter’s wife on 27 July 2022 and on Mr Carter the following day.
[11] Mr Carter subsequently filed documents challenging the direction requiring him to attend a non-violence programme. This prompted the Registry to allocate a fixture on 6 September 2022 to determine whether the protection order should be made final and whether Mr Carter should be required to attend a non-violence programme. Mr Carter filed affidavits in opposition to both applications on 24 August 2022 and Ms Wilson filed an affidavit in reply on 2 September 2022. This prompted Mr Eades to object on Mr Carter’s behalf because, unlike her original affidavit, the affidavit in reply raised several issues other than the incident that had occurred on 8 July 2022.
[12] In a decision delivered on 7 October 2022, Judge Grimes dismissed the application for a final protection order against Mr Carter.4 Ms Wilson appeals only against the Judge’s decision dismissing her application for a final protection order against Mr Carter. She no longer seeks a protection order against Mr Carter’s wife or a direction that Mr Carter attend a non-violence programme.
Relevant principles
[13] There is no dispute that the Judge correctly identified the issues the court must determine before it makes a protection order under s 79 of the Family Violence Act 2018 (the Act).5 These are:
(a)Whether the parties are or have been in a family relationship.
(b)Whether the respondent has committed an act or acts amounting to family violence.
4 Wilson v Carter, above n 1. Ms Wilson withdrew her application against Mrs Carter as an associated respondent in written submissions the Court received after the hearing.
5 At [8].
(c)Whether a protection order is necessary for the protection of the applicant and/or his or her family, taking into account the applicant’s perception of the behaviour and its effect on him or her.
[14] It was common ground the parties had been in a family relationship. The issues the Judge was therefore required to determine were whether Mr Carter had committed an act or acts that amounted to family violence and, if so, whether a protection order was necessary for the protection of Ms Wilson and/or the children.
[15] The Judge also noted that s 9(2) of the Act defines family violence as physical, sexual and psychological abuse. The latter is defined in s 11 of the Act but is context specific as between the perpetrator and the victim. It may include intimidation, harassment, damage, threats of abuse, financial or economic abuse and situations in which a child is exposed to seeing or hearing family violence. The Judge also noted that a single act of violence may amount to abuse6 and that abuse may occur where there are a number of acts that form a pattern of behaviour even where those acts may appear minor or trivial when viewed in isolation.7
[16] An appeal against the making of, or refusal to make, a protection order under the Act proceeds by way of rehearing in accordance with conventional appellate principles on the basis of the record of the proceeding in the court below.8 This means that Ms Wilson is entitled to this Court’s opinion as to the correctness of the decision of the Family Court. However, she bears the onus of demonstrating why that decision is wrong.9
[17] In her affidavit filed in support of the without notice application for an interim protection order Ms Wilson relied solely on the incident that occurred on 8 July 2002 as being the act or acts by Mr Carter that constituted family violence for the purpose of her application for a protection order. It is therefore appropriate to refer to that incident in greater detail at this point.
6 Family Violence Act 2018, s 10(1).
7 Section 10(2).
8 Section 177; and Family Court Rules 2002, r 60.
9 Austin, Nicholls & Co Inc v Stichting Lodestar [2007] NZSC103, [2008] 2 NZLR 141 at [4].
The incident on 8 July 2022
[18] In her original affidavit Ms Wilson said that Mr Carter arrived at her address “unannounced and uninvited”. She said his arrival at her address distressed her because changeovers usually took place at the childrens’ school. She said she could hear her other two children crying in Mr Carter’s vehicle.
[19] She said that she repeatedly asked Mr Carter and his wife to leave but they refused to do so. She also said that Mr Carter was angry, aggressive and intimidating throughout the incident. She said she became extremely distressed and worried about the effect the incident would have on Emily, who was already in an extremely fragile state.
[20] On Mr Carter’s behalf Mr Eades points out that Ms Wilson failed to include a significant amount of material information in her original affidavit. This included the fact that Mr Carter had told Ms Wilson he would be coming to pick Emily up on 8 July 2022 so his arrival could not realistically be described as unannounced. The contact orders also specifically authorised Mr Carter to pick the children up from Ms Wilson’s driveway if changeover was not to occur at the school. Further, Ms Wilson did not disclose the fact that Mr Carter was entitled to have contact with Emily even when she was unwell. Nor did she disclose the fact that both she and Mr Carter had called the police and Mr Carter and his wife were waiting outside her address for the police to arrive to resolve the impasse that had arisen. I agree with Mr Eades that Ms Wilson ought to have disclosed all these matters in the affidavit she filed in support of her without notice application for a protection order.
[21] Ms Wilson also said in her affidavit that Mr Carter had parked his car in her driveway, thereby preventing Ms Wilson and her neighbour from using the driveway. At the hearing it became clear that Mr Carter initially parked in the driveway but not on Ms Wilson’s property. When a neighbour wished to use the driveway he parked his car on the street outside a neighbour’s address.
[22] In the end, however, the most important aspect of the incident on 8 July 2022 is the manner in which Ms Wilson alleges Mr Carter treated her on that date. In addition to her own evidence Ms Wilson relied on evidence given by her mother, who
was present in her house on 8 July 2022, and a neighbour who had witnessed and filmed part of the incident on her cellphone. Both her mother and the neighbour told the Judge that they heard Mr Carter and his wife shouting at Ms Wilson during the incident. Each had also recorded part of the incident on their cellphone. Neither produced the footage they had filmed as evidence at the hearing.
[23] By contrast, Ms Wilson produced an audio file that she had recorded without Mr Carter’s knowledge shortly after he arrived at her address. She also produced videoclips that she had recorded on her cellphone on two occasions when she left her address and walked out to the street to speak to Mr Carter.
[24] The Judge had the benefit of seeing and hearing the recordings made by Ms Wilson on her cellphone, as did I. The Judge relied in part on these in making the following factual findings in relation to the incident that occurred on 8 July 2022:10
(c)As permitted under the parenting order (and therefore not a breach of his undertaking), Mr Carter went to collect Emily from Ms Wilson’s driveway on Friday 8 July 2022 being the last day of term.
(d)The first exchange between the parties was captured in Ms Wilson’s voice recording lasting five minutes and 38 seconds. Ms Wilson approached Mr Carter suggesting he leave Emily with her for a couple of days. Both acknowledged they did not want conflict. Ms Wilson oscillated between saying Emily is “not unwell – it is surgery” to saying Emily is “too sick” to travel. Ms Wilson repeatedly tells Mr Carter that Emily is not going with him. In response Mr Carter says his next step is to call the police to resolve the dispute to which Ms Wilson replies, “Go for it”.
(e)At no time during that exchange did Ms Wilson ask Mr Carter to leave.
(f)In her evidence, [Ms Wilson’s neighbour] did not state Mr Carter went onto either Ms Wilson’s or her property. Mr and Mrs Carter were both clear they did not enter either property. I accept their evidence and find Mr Carter did not enter onto Ms Wilson’s or [the neighbour’s] properties and this exchange took place outside of the properties.
(g)At no time were voices raised other than to hear each other over the pouring rain and traffic. There was no abusive language, harassment or intimidation. Both Ms Wilson and Mr Carter were calm speaking in a conversational tone. Mr Carter was explaining why Emily would be comfortable with them. Whilst I appreciate both Ms Jordan and Mrs Wilson Senior state Mr Carter was yelling, that was not evident from the recording.
10 Wilson v Carter, above n 1, at [29].
(h)The second exchange is not recorded but is set out in Mr Carter’s evidence. It was not disputed as having taken place. In summary, an exchange occurred regarding the terms of the parenting order, each disagreeing with the other’s interpretation.
(i)The third exchange took place after both parties had called the police. This was filmed by Ms Wilson for seven minutes and 10 seconds. This shows:
(i)The Carter vehicle was parked on the roadside. Mr Carter remained beside the car. Ms Wilson approached him from [her neighbour’s] house. Ms Wilson tells him there is no agreement to be at her property. He advises her he had called the police and was waiting for them to arrive. Ms Wilson’s response was, “You wait for the police to arrive”.
(ii)After Mrs Carter suggests it is embarrassing for everyone being videoed and Ms Wilson did not have their permission to do so, it was again stated they were waiting for the police, to which Ms Wilson replies, “Ok, cool, awesome”. Ms Wilson repeated Emily was too sick to travel.
(j)During this exchange no party was yelling, shouting or being verbally abusive. Nor did Ms Wilson tell Mr Carter to leave. Rather her response expressed an expectation Mr Carter would remain on the roadside waiting for the police.
(k)The final exchange as recorded by Ms Wilson is two minutes 37 seconds long. Ms Wilson again approaches Mr Carter advising the police had suggested removing the children. Ms Wilson states Mr Carter was never invited to her property. As with the other exchanges there was no yelling, threats or intimidation.
(l)Mr and Mrs Carter remained outside Ms Wilson’s property for two hours whilst they waited for the police. There was no further interaction with Ms Wilson. Having then been advised by the police they could not get there until later, they left without Emily.
[25] These factual findings led the Judge to conclude that the incident on 8 July 2022 “was a parenting dispute with each party trying to persuade the other of their interpretation of the parenting order”.11 It did not meet the definition of family violence in the Act.
[26] Having heard the recordings made by Ms Wilson I agree with the factual findings made by the Judge in the passage set out above. The recordings reflect a disagreement between Ms Wilson and Mr Carter as to whether Emily should go with
11 At [35].
Mr Carter and whether he was breaching his obligations under the undertakings he had given in May 2019 by going to and remaining at Ms Wilson’s address.
[27] Both parties had reasonable arguments to justify their respective positions on these issues. The contact orders required Mr Carter to pick the children up from the driveway of Ms Wilson’s address if he did not pick them up from school. He was also entitled to have contact with the children even if they were unwell. On the other hand, Ms Wilson was plainly entitled to take the view that it would not be conducive to Emily’s recovery to require her to travel for one and a half hours in a vehicle to Mr Carter’s address. She had only been discharged from hospital the previous day and Ms Wilson knew she was still in considerable pain and discomfort. However, neither party was prepared to accept the viewpoint of the other so they decided to let the police decide what should happen.
[28] Importantly, however, I agree with the Judge’s assessment that nothing in the recorded conversations comes close to amounting to abusive conduct by Mr Carter towards Ms Wilson. Mr Carter was undoubtedly firm in stating what he believed to be his legal rights. However, contrary to Ms Wilson’s assertions in her original affidavit, he never shouted at Ms Wilson or spoke in a tone that humiliated or belittled her. Nor did he ever come onto her property. He remained in or beside his vehicle out on the street.
[29] Nor is there any hint in the recordings that Ms Wilson was feeling distressed about what was occurring. She was just as forthright in letting Mr Carter know her views regarding Emily’s welfare and what he was doing. In my view Ms Wilson was arguably an instigator during these exchanges. This is reflected in the fact that she chose to leave her house on several occasions and approach Mr Carter out on the street. Mr Carter largely responded by reminding Ms Wilson that he was waiting for the police to arrive.
[30] Mr Sutton challenges the Judge’s conclusion that Mr Carter was not in breach of his obligations under the undertakings when he remained at Ms Wilson’s address once he became aware she was not happy with him being there. He submits that this breached the undertaking not to loiter outside or watch Ms Wilson’s address.
However, I consider the word “loiter” means to remain in a place without a good or proper reason to be there. Mr Carter made it clear to Ms Wilson on numerous occasions that he was waiting on the street for the police to arrive. This constituted a proper reason for him to remain in the vicinity, particularly given the fact that Ms Wilson had agreed the police should be called to resolve the impasse that had arisen. There is nothing in the evidence to suggest he was there to watch her house. I therefore agree with the Judge that Mr Carter did not breach the undertakings he had given by remaining on the street after he knew Ms Wilson was unhappy with him being there.
[31] For these reasons I consider the Judge was correct to find that the incident on 8 July 2022 did not involve Mr Carter committing an act or acts that constituted family violence.
[32] Mr Sutton emphasises that the Judge needed to take into account the history of conflict between the parties as recorded in the judgement she had issued on 12 October 2020. However, that judgment records that both parties were equally responsible for the high level of conflict they exposed their children to.12 The Judge also observed that both needed to take a new approach to their dealings with each other in the future.13 In any event, the incident on 8 July 2022 did not involve any conflict other than in relation to the different interpretation each placed on the contact orders and the undertakings.
[33] Mr Sutton also contends the Judge ought to have taken into account an incident that had occurred in December 2021 on another occasion when contact was to take place. On this occasion Mr Carter was running late to uplift the children and Ms\ Wilson suggested that he pick them up from outside her place of work. Rather than wait outside as had been agreed, Mr Carter entered her workplace to find the children. In doing so he ignored signs that prohibited unauthorised persons from entering the premises.
12 Wilson v Carter, above n 2, at [31].
13 At [34].
[34] The Judge put this incident to one side because Ms Wilson had raised it for the first time in her reply affidavit filed very shortly before the hearing.14 Even if the incident is taken into account, however, it does not improve Ms Wilson’s position. When asked about it in cross-examination Mr Carter said he could hear one of his children crying when he arrived at Ms Wilson’s place of work and decided to try to find and placate him. He had subsequently apologised to Ms Wilson for entering her place of work without authority to do so. Mr Sutton categorised this incident as a serious breach of Mr Carter’s obligations under the undertakings he had given but I disagree. More importantly, I do not consider it came close to amounting to an act of family violence towards Ms Wilson.
[35] Mr Sutton also contended the Judge ought to have taken into account emails that Mr Carter sent to Ms Wilson in which he allegedly treated her in a condescending and dismissive way. The Judge noted that this issue had been raised for the first time in the written submissions filed by Mr Sutton on Ms Wilson’s behalf following the hearing on 6 September 2022. The Judge also noted that the issue had not been pleaded or raised in cross-examination of Mr Carter. For these reasons she put it to one side.15
[36] As it transpires, the emails were not raised for the first time in Mr Sutton’s written submissions following the hearing. The emails were referred to in the Judge’s contact decision, which Mr Carter had annexed to his affidavit. The Judge referred in this decision to a report from a counsellor expressing concerns about the tone of Mr Carter’s emails to Ms Wilson.16 Mr Carter also exhibited other more recent emails between the parties to his affidavit.
[37] Having read the emails in their entirety, however, they take matters little further from Ms Wilson’s perspective. The more recent emails do not demonstrate that Mr Carter treated Ms Wilson in the way that Mr Sutton contends. They demonstrate, in fact, that Ms Wilson was prepared to make provocative comments to Mr Carter. One example is an email she sent to Mr Carter on the morning of 8 July 2022 at a time
14 Wilson v Carter, above n 1, at [28].
15 At [27].
16 Wilson v Carter, above n 2, at [49].
when it was obviously anticipated that Emily would have contact with her father later in the day. Ms Wilson advised Mr Carter in this email that Emily needed to remain immobile and that she needed to keep her leg elevated. She also told him that he needed to seek medical attention for Emily if he noted any signs of fever, numbness, swelling or loss of movement in her toes. Ms Wilson ended the email by stating “Don’t fck it up”.
[38] Finally, Mr Sutton contends that the Judge failed to have regard to the fact that Ms Wilson was clearly adversely affected by the incident on 8 July 2022, coming as it did on top of earlier abusive conduct by Mr Carter. This issue may have become relevant if it had been necessary to consider whether it was necessary to make a protection order once an act constituting family violence had been established. Section 83(1) of the Act requires the court to have regard to the perception of the applicant as to the nature and seriousness of the behaviour in respect of which the application is made and also the effect of that behaviour on the applicant.
[39] As Mr Eades points out, however, the court must not only consider whether an applicant’s fear is genuine. It must also be reasonably held.17 In the present case there is nothing in the recorded conversations to support the proposition that Ms Wilson was feeling fearful as a result of her interactions with Mr Carter on 8 July 2022. Nor could she reasonably have felt fearful given the nature of the discussions that were taking place at that time.
Result
[40] For the reasons I have given I am satisfied the Judge was correct to conclude that Ms Wilson had failed to establish any act of family violence committed by Mr Carter.
[41]The appeal is accordingly dismissed.
17 Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581 at [118].
Costs
[42] Mr Carter would ordinarily be entitled to an award of costs as the successful party on the appeal. However, Ms Wilson is legally aided. No order for costs may be made against a legally aided person unless the court is satisfied there are exceptional circumstances.18 Examples of factors that may amount to exceptional circumstances are set out in s 45(3) of the Legal Services Act 2011 (LSA). I have not heard from counsel on this issue but my tentative view is that there are no exceptional circumstances in the present case.
[43] In accordance with s 45(5) of the LSA I would ordinarily make an order specifying that Ms Wilson would have been required to pay Mr Carter costs on a category 2B basis if she had not been legally aided. If Mr Carter wishes to take the issue of costs further Mr Eades should file and serve a concise memorandum in relation to costs within 14 days of the date of this judgment.
Lang J
18 Legal Services Act 2011, s 45(2).
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